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LIBRARY 

OF THE 

UNIVERSITY OF CALIFORNIA. 

RECEIVED BY EXCHANGE 
Class 






The Introductory Articles of the 
Constitution of Illinois 



BY 



HERMAN G. JAMES, A.M., J.D., 

MEMBER OF THE ILLINOIS BAR 




THE WICKERSHAM PRESS 

LANCASTER, PA. 

1911 



THE INTRODUCTORY ARTICLES OF THE 
CONSTITUTION OF ILLINOIS 



BY 



HERMAN GERLACH JAMES, A.M., J.D. 

MEMBER OF THE ILLINOIS BAR 



SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS 

FOR THE DEGREE OF DOCTOR OF PHILOSOPHY 

IN THE 

FACULTY OF POLITICAL SCIENCE 
COLUMBIA UNIVERSITY 



Divisions one and two were read before the Chicago Historical Society in 
1910 and appeared in a pamphlet form. 

Division four appeared in the Illinois Law Review, Vol. IV, No. 9, p. 624. 



THE WICKERSHAM PRESS 

LANCASTER, PA. 

I9II 



PREAMBLE. 1 

A study of the preamble of a constitution may often 
prove interesting and instructive to the student of constitu- 
tional history, even though its practical value to a lawyer 
may be comparatively slight. It has, indeed, been asserted 
that a preamble is, strictly speaking, without force in a legis- 
lative sense, being but a guide to and not the vehicle of the 
import of a statute. 2 Other writers, however, have awarded 
to the preamble of a constitution or a statute a larger meas- 
ure of importance, 3 and the decisions of our federal supreme 
court contain a number of expressions of opinion on the 
meaning of the preamble to the federal constitution 4 which 
have unquestionably been of great significance in the de- 
velopment of the powers conceded by that tribunal to the 
federal government under the constitution. Nor can it make 
any material difference, for our purposes, whether the first 
paragraph of the constitution of Illinois should be termed 
an enacting clause rather than a preamble, as has been as- 

1 " We, the People of the State of Illinois grateful to Almighty God for the 
civil, political and religious liberty which he hath so long permitted us to enjoy 
and looking to Him for a blessing upon our endeavours to secure and transmit 
the same unimpaired to succeeding generations in order to form a more perfect 
government, establish justice, insure domestic tranquility, provide for the com- 
mon defense, promote the general welfare, and secure the blessings of liberty to 
ourselves and our posterity, do ordain and establish this Constitution for the State 
of Illinois." Constitution of Illinois, 1870, Preamble. 

3 Lieber, " Hermeneutics," p. 117 n. 

3 Story on the Constitution (4th ed.), p. 338; Kent's "Commentaries," Lec- 
ture xx, p. 460 ff. 

*Chisholm v. Georgia, 2 Dallas, 419; Martin v. Hunter, I Wheaton, 305; 
McCullock v. Maryland, 12 Wheaton, 316. 

3 



226937 



4 THE CONSTITUTION OF ILLINOIS 

serted of the almost identical preamble to the federal consti- 
tution, l or whether it partakes of the nature of both of these 
forms, for we are here concerned primarily with the origin 
and development of the first paragraph in the constitution, 
expressly termed by the framers, whether rightly or wrongly, 
a preamble. 

A considerable part of the preamble to the present consti- 
tution of Illinois is directly traceable to the first constitution 
of the state, adopted in 1818, the opening paragraph of 
which contains the following language : " The People of 
Illinois Territory etc. ... in order to establish justice, pro- 
mote the welfare and secure the blessings of liberty to 
themselves and their posterity do ... ordain and establish 
the following constitution or form of government." 2 It is 
seen that all of these clauses have become, with some minor 
alterations, part of the preamble to the present constitution. 

At the time when the first Illinois constitution was 
framed it was already the general practice in the other states 
of the Union to prefix preambles to their constitutions, for, 
of the eighteen states which had adopted constitutions before 
i8i8, 3 all but three, Georgia, 1798; New Hampshire, 1792; 
and Vermont, 1793, had inserted a clause in the nature of 
a preamble, as had also the federal constitution of 1787. Of 
these sixteen, however, apparently only the Indiana consti- 
tution of 1816, the Ohio constitution of 1802, and the fed- 
eral constitution of 1787 could have served as models for 
the Illinois constitution in this respect as they contain almost 

1 Andrews, " Manual of the Constitution," p. 44. 

8 Debates and Proceedings of the Constitutional Convention of 1869, p. 1889. 

'Delaware, 1792; Georgia, 1798; Indiana, 1816; Kentucky, 1792; Louisiana, 
1812; Maryland, 1776; Massachusetts, 1780; Mississippi, 1817; New Hamp- 
shire, 1792; New Jersey, 1776; New York, 1777; North Carolina, 1776; Ohio, 
1802; Pennsylvania, 1790; South Carolina, 1790; Tennessee, 1796; Vermont, 
1793; Virginia, 1776. Thorpe, "American Charters, Constitutions and Organic 
Laws." 



PREAMBLE 5 

the identical phraseology, while the first three clauses are to 
be found in none of the other preambles of that time. 

In all probability the direct prototype of the Illinois pream- 
ble of 1818 was that of the Indiana constitution of 1816; for 
the wording is identical in the two, save that in the Illinois con- 
stitution the third person is used instead of the first person, 
which latter form was indeed adopted in the original commit- 
tee draft of the constitution of Illinois, though subsequently 
changed by amendment. 1 The constitution of Indiana having 
been adopted less than two years before the constitutional 
convention met in Illinois, and being furthermore the funda- 
mental law of a neighboring state, closely related in every 
way, it was naturally the instrument to which the framers of 
the Illinois constitution directly looked for suggestions and 
guidance, even as Indiana had in turn borrowed largely from 
her elder sister state, Ohio, all three states having in close 
succession been carved out of the original Northwest Terri- 
tory. As regards the wording of the preamble there is no 
doubt that the federal constitution was the ultimate original 
instrument of which the above three state constitution pre- 
ambles were copies. 

A determined but unsuccessful effort was made to have 
embodied in the preamble to the constitution of 1818 a 
recognition of the Deity and of Christ. Ford, in his " His- 
tory of Illinois " says, " during the sitting of the convention 
of 1818, the Rev. Mr. Wiley and his congregation of a sect 
called Covenanters, in Randolph County, sent in their peti- 
tion, asking that body to declare in the constitution about 
to be made that Jesus Christ was the head of the govern- 
ment and that the Holy Scriptures were the only rule of 
faith and practice. It does not appear," he goes on to say, 
" by the journals of the convention that this petition was 

1 Journal of the Constitutional Convention of 1818, pp. 16, 42. 



6 THE CONSTITUTION OF ILLINOIS 

treated with any attention, wherefore the Covenanters never 
yet 1 fully recognized the state government. They have 
looked upon it as ' an heathen and unbaptized government 
which denies Christ' ; for which reason they have constantly 
refused to work the roads under the laws, serve .on juries, 
hold any office or do any other act showing that they recog- 
nize the government. For a long time they refused to vote 
at the elections ; and never did vote until the election in 
1824 when the question was whether Illinois should be made 
a slave state, when they voted for the first time and unani- 
mously against slavery." The actual wording of these peti- 
tions, of which there were three in all, as shown by the jour- 
nal of the convention of 1818 was slightly different, though 
substantially as stated by Ford. 2 Two of them were referred 
to a select committee which was later discharged from the 
further consideration thereof, and the other, presented four 
days before adjournment of the convention in Angust was on 
motion of Mr. Cullom laid on the table " until the fourth day 
of March next." 3 This agitation though unsuccessful at 
that time had its effect on the consideration of the same 
general question thirty years later when the second consti- 
tution of Illinois was being framed. 

Coming now to the constitution of 1848 we find several 
changes in the form of the preamble from that of the constitu- 
tion of 1818, which changes were also embodied in the pream- 
ble to our present constitution. A distinct paragraph was made 
of the preamble, some of the clauses in the first constitution 
were slightly altered to conform to the style adopted by the 
majority of constitutions in force at that time, and four new 
phrases were added. Three of these viz. (in order to) (a) 
"form a more perfect government," (b) "insure domestic 

1 1854- 

2 Journal of the Constitutional Convention of 1818, pp. 13, 66. 

3 Ibid., p. 66. 



PREAMBLE 7 

tranquility," (c) " provide for the common defense," were 
evidently taken verbatim from the federal constitution, for 
they were to be found in no other state constitutions in 1847, 
except the last clause which was found in the Alabama con- 
stitution of 1 819.' 

The fourth addition, and the most important of the 
changes, was the present clause referring to the Deity. 
It has been seen how the failure of the convention of 
1818 to embody any mention of the Deity in the con- 
stitution of that year was the cause of violent opposition 
by the Convenanters. Yet the report of the committee on 
law reform in the convention of 1847 contained a preamble 
in which again no reference was made to the Deity, 2 although 
by this time nine state constitutions had been adopted with 
some such clause in the preamble. 3 The preamble was, 
however, amended by the addition of the present clause con- 
taining an expression of thanks and an invocation, 4 written 
by Judge Lockwood, 5 and modeled almost exactly on the 
corresponding clause in the constitution of New Jersey 
adopted three years before. 

That the preamble as finally adopted in the constitution 
of 1848 met with approval, or at least with no strong oppo- 
sition, is evidenced by the fact that it was incorporated with- 
out the slightest change both into the proposed constitution 
of 1862 and into the present constitution adopted in 1870. 
The convention of 1862 adopted the former preamble with- 

1 Cf. Alabama, 1819, "insure tranquility," and Maine, 1819, "provide for our 
mutual defense." Cf. also the Constitution of the Republic of Texas, 1836. 

2 Journal of the Convention of 1847, p. 395. 

3 Connecticut 1818, Delaware 1831, Iowa 1846, Maine 1819, Massachusetts 
1780, New Jersey 1844, New York 1846, Rhode Island 1842, Texas 1845; 
Thorpe, " American Charters, Constitutions and Organic Laws." 

* Journal of the Convention of 1847, P- 5 11 - 

5 Orville Berry, "The Constitutions of Illinois." Illinois Blue Book, 1907, p. 
522. 



8 THE CONSTITUTION OF ILLINOIS 

out discussion, but in the convention of 1870 the preamble 
was again the subject of various motions, resolutions and peti- 
tions especially with respect to the recognition of the Deity, 
before being finally adopted in its entirety from the existing 
constitution. One resolution called for a recognition of Jesus 
Christ in addition to recognizing Almighty God, 1 and was 
supported by a petition to that effect from divers citizens of 
Washington County. 2 Another resolution again proposed a 
preamble omitting all reference to the Supreme Being, 3 while 
the committee on the bill of rights reported a preamble con- 
taining a recognition of both Jesus Christ and Almighty 
God. 4 A Mr. Goodell, impressed with the dignity of the 
body of which he was a member, offerred the following: 
" Resolved that the Committee on the Bill of Rights be re- 
quested to inquire into the expediency of prefixing the word 
' Almighty ' to ' God,' as proposed in the preamble re- 
ported to this Convention by the committee, as said phrase 
clearly implies and asserts that the sovereignty exists else- 
where than in this Convention." 5 

These various resolutions and reports evoked considerable 
debate 6 all terminating, however, in a substitute motion to 
adopt the preamble to the existing constitution (1848) in lieu 
of all pending propositions, which was adopted by the con- 
vention. 7 

That this demand for an express recognition of the Supreme 

1 Journal of the Constitutional Convention of 1869, p. 96. 

2 Debates and Proceedings of the Constitutional Convention of 1869, p. 479. 

3 Journal of the Constitutional Convention of 1869, p. 179. 

4 Ibid., p. 207. 5 Ibid., p. 238. 

6 Debates and Proceedings of the Constitutional Convention of 1869, pp. 231- 
235, 276-278. Cf. also Illinois State Journal, January 28, 1870, for a communi- 
cation on the subject of recognizing Christ in the constitution. 

7 Journal of the Constitutional Convention of 1869, p. 242. Cf. Illinois State 
Journal, January 25, 1870, for editorial comment on the proposed preambles. 



PREAMBLE g 

Being in the fundamental law of the state was not an isolated 
phenomenon in Illinois, but merely one manifestation of a 
general growing conviction among the people of the United 
States as a whole in favor of such a recognition, appears 
firstly from the fact that whereas in 1818 of the eighteen 
constitutions then in force, only two, viz. Delaware 1792 and 
Massachusetts, 1780, contained a direct recognition of the 
Supreme Being, other than the references in the requirements 
of oaths of office and the provision protecting religious free- 
dom found in all the constitutions, by 1848 when such a 
clause was inserted into the constitution of Illinois for the 
first time, nine of the twenty-eight state constitutions then 
in force contained such a clause in the preamble, two of the 
sixteen states without it in 1818 having embodied it in sub- 
sequent constitutions, viz. New Jersey, 1844, an d New York, 
1846. At the present time, moreover, forty-one of the forty- 
six state constitutions contain a clause similar to that in the 
Illinois constitution, and of the remaining five, viz. New 
Hampshire, 1792, Oregon, 1857, Tennessee, 1870, Vermont, 
1793, and West Virginia, 1872, those of New Hampshire and 
Vermont are still the constitutions of the earliest period when, 
as has been seen, only three states contained a clause of that 
nature. 1 

It is an interesting fact that in the last constitutional con- 
vention for Michigan in 1908 no suggestion had been made 
to insert a clause in recognition of the Deity there having 
been no such clause in either of the two prior constitutions 
of that state until a resolution was presented on the floor 
of the convention from a Free-thinkers Society in Detroit 
protesting against any attempt to insert such a clause. Very 
soon thereafter such a clause was reported, and adopted 
without discussion. The federal constitution, moreover, still 
dating from that early period and having no reference to the 

1 See ante, p. 4. 



I0 THE CONSTITUTION OF ILLINOIS 

Deity, has been subjected to considerable criticism on that 
account, which culminated in 1863 and 1864 during the dark 
days of the Civil War in three religious conventions, one 
held at Xenia, Ohio, February 3, 1863, one at Sparta, Illinois 
three days later and the third in Allegheny City, Pennsyl- 
vania, January 27, 1864 all advocating an amendment to 
the constitution so as to include an acknowledgment of the 
Deity in the preamble. 1 

In conclusion it may be added that at the present time all 
but three state constitutions, viz. New Hampshire, 1792; 
Vermont, 1793 ; and West Virginia, 1872 contain clauses in 
the nature of a preamble, though not expressly so designated 
in them all. These preambles are as a rule similar to that 
of the constitution of Illinois, though with a few exceptions 
somewhat shorter. Nevertheless they display in this respect 
marked differences, ranging from a full-page introduction in 
the constitution of Tennessee, 1870, and an extended philo- 
sophical disquisition an the nature of government, in that of 
Massachusetts, 1780, on the one hand, to the concise two 
and three line preambles in the constitutions of North Dakota, 
1889, and Oregon, 1857, on trie other. Of the two general 
subjects in the preamble of the Illinois constitution, viz. the 
reference to the Deity and the declaration of the purposes of 
the constitution, the former is dealt with also in all but two 
of the other state constitutions containing preambles, viz. 
Oregon, 1857, and Tennessee, 1870, while the latter is in- 
cluded in more than one-half of the present preambles. 

From the above considerations, therefore, it is seen that 
whatever the legal import or practical significance of the 
preamble to a constitution may be, it has for a century and a 
quarter had a recognized place in the form of our American 
constitutions from the earliest constitutions of 1776 to the 
most recent ones of 1907 and 1908. 

1 Cornelison, " Religion and Civil Government in the United States," p. 230 ff . 



ARTICLE I. 

BOUNDARIES. 1 

The first public act of any subsequent significance, deal- 
ing with the title and jurisdiction to any part of the territory 
now comprised within the state of Illinois, was the Virginia 
Charter of 1609. By this Charter James I granted to the 
London Company, incorporated in 1609, two hundred miles 
to the north and two hundred miles to the south of Old 
Point Comfort, along the coast, and " all that space and cir- 
cuit of land lying from the sea-coast of the precinct afore- 
said, up into the land throughout, from sea to sea, west and 
northwest." 2 Upon this charter, annulled in 1624 by quo 
warranto proceedings, Virginia later partly based her claim 
to the lands lying northwest of the Ohio, including the present 
state of Illinois. This charter was followed in 1620 by the 
Charter of New England, by which James I granted to the 
reorganized Plymouth Company of 1606 all the land lying 

1 " The boundaries and jurisdiction of the state shall be as follows, to wit : Be- 
ginning at the mouth of the Wabash River; thence up the same, and with the 
line of Indiana to the northwest corner of said state; thence east with the line of 
the same state, to the middle of Lake Michigan; thence north along the middle 
of said lake to north latitude forty-two degrees and thirty minutes, thence west to 
the middle of the Mississippi River, and thence down along the middle of that 
river to its confluence with the Ohio River, and thence up the latter river along 
its northwestern shore to the place of its beginning; Provided, That this state 
shall exercise such jurisdiction upon the Ohio River as she is now entitled to or 
such as may hereafter be agreed upon by this state and the state of Kentucky." 
Constitution of Illinois, 1870, Boundaries. 

2 Second Charter of Virginia, 1609; Thorpe, " American Charters, Constitutions 
and Organic Laws," vol. vii, p. 3790. 

II 



12 THE CONSTITUTION OF ILLINOIS 

and being in breadth from 40 north latitude to 48 and 
" in length by all the breadth aforesaid throughout the main 
land from sea to sea," T which grant therefore, covered all 
that part of the present state of Illinois, situated north of an 
east and west line about fifteen miles north of Springfield ; 
that is to say, it included the entire northern half of the 
present state. 

The Council of New England then granted in 1628 to 
a company composed of Endicott and five named asso- 
ciates all that part of New England between three miles 
north of the Merrimac River and three miles south of the 
southermost point of Massachusetts Bay or of the Charles 
River, " in length and longitude of and within all the breadth 
aforesaid, throughout the main lands there, from the Atlantic 
and Western Sea, and Ocean on the east part to the South 
Sea on the west part." 2 This grant, therefore, did not ex- 
tend as far south as the lands of the New England Council 
extended and covered only about the northern one-tenth of 
the present state i. e., north of lat. n. 42 2' which is prac- 
tically the line of the present northern city limits of Chicago. 
This grant was confirmed by Charles I in the following year 3 
and became the basis of the Massachusetts claims to western 
lands insisted upon in 1779, this charter having been annulled 
by quo warranto proceedings in 1684 and a new charter 
granted in 1691 4 conveying land to the westward as far as 
the colonies of Connecticut extended in that direction. 

This last colony held under a sea-to-sea charter by Charles 
II. in 1662 granting to John Winthrop and associates all lands 
west of Narragansett Bay, and south of the Massachusetts 

1 The Charter of New England. Thorpe, vol. iii, p. 1827. 

5 Cf. Charter of Massachusetts Bay, 1629; Thorpe, "American Charters, etc.," 
vol. iii, p. 1847. 

3 Charter of Massachusetts Bay, 1629; Ibid., p. 1846. 

4 Charter of Massachusetts Bay, 1691; Ibid., p. 1870. 



BOUNDARIES ^ 

line and between it and the sea and " in longitude as the line 
of the Massachusetts colony running from east to west, that 
is to say from the said Narragansett Bay on the east to the 
South Sea on the west part." x It was this charter, never 
annulled by judicial proceedings and not even physically 
surrendered upon demand of Sir Edward Andros in 1687 
which supported the claim of Connecticut to that part of 
what is now Illinois situated between lat. n. 41, which runs 
a few miles south of Kankakee, and the southern boundary 
of the Massachusetts claim at 42 2'. 

Such then, were the public acts up to the year 1663, pur- 
porting to affect the title to lands now part of the state of 
Illinois. It was not, however, until ten years later that the 
first white man is known to have set foot within the present 
territory of Illinois, and the ones thus to claim this country 
by right of discovery were not Englishmen, but two French- 
men, the one, Father Marquette the Jesuit missionary, the 
other, Louis Joliet representing the French government at 
Quebec. These two men in 1673 descended the Wisconsin 
River to the Mississippi which they followed down to the 
mouth of the Arkansas and ascending on their way back the 
Illinois River to its upper waters, crossed over to Lake 
Michigan at Chicago. From that time on, the Illinois coun- 
try was entered by a number of French traders and ex- 
plorers, chief among whom was the famous La Salle. About 
the year 1700 the French villages of Kaskaskia and Cahokia 
on the Mississippi River were settled and French coloniza- 
tion slowly continued until the treaty of I763. 2 For almost a 
century, therefore, after Marquette's voyage the French had by 
occupation substantiated their claim to title and jurisdiction 
by the right of discovery. 

Then at the close of the French and Indian War, the king 

1 Charter of Connecticut, 1662. Thorpe, vol. i, p. 529. 
* Greene, " The Government of Illinois," pp. 7 et seq. 



14 THE CONSTITUTION OF ILLINOIS 

of France was by the Treaty of Paris of 1763 obliged to 
surrender to Great Britain everything that he possessed on 
the left side of the Mississippi River, except the town of 
New Orleans ; and the confines of the dominions of Great 
Britain were fixed by a line drawn along the middle of the 
Mississippi River from its source to the River Iberville. 1 
By this treaty, therefore, the first international act involving 
the title to land within the present state of Illinois, there 
was fixed a boundary line a part of which has remained the 
western boundary to the territory now included within Illi- 
nois from that time down to the present. 

Following this treaty, and in the same year there was issued 
a proclamation by George III providing that no colonists 
should settle west of the watershed for the Atlantic Ocean ; 2 
all the valley from the Great Lakes to West Florida and 
from the Alleghenies to the Mississippi being thereby set 
apart for the Indians. In 1778 title and jurisdiction to the 
region now partly included in the state of Illinois was again 
claimed by Virginia as a result of the conquests by George 
Rogers Clark, who in July of that year under a commission 
from Governor Patrick Henry of Virginia captured the set- 
tlements of Kaskaskia, Cahokia, and several other posts in 
the name of that commonwealth. 3 Then by the act of Dec. 
9, 1778 Virginia organized the county of Illinois, 4 compris- 
ing all the country north and west of the Ohio River claimed 
under the charter of Virginia of 1609.5 

1 Treaty of Paris, 1763. Gentleman's Magazine, xxxiii, p. 121. The Iberville, 
now called Manshac Bayou, is an outlet of the Mississippi some fifteen miles be- 
low Baton Rouge, connecting the Mississippi on the west with the Amite River 
on the east. See Thwaite's " Early Western Travels," vol. viii, p. 338; also Index. 

2 Annual Register, 1763, pp. 208-213. 

3 Hildreth, " History of the United States," vol. iii, p. 260. 

4 Illinois Historical Collections, Virginia Series, vol. i, p. 9. 

5 See supra, p. n. 



BOUNDARIES jcj 

The last years of the Revolution saw the territory com- 
prised within the present state of Illinois, claimed in whole 
or in part by as many as five different governments. Eng- 
land had of course not yet surrendered the title and jurisdic- 
tion acquired by her from France through the treaty of 
Paris. Virginia, as has been seen, claimed the whole of the 
country northwest of the Ohio upon the double basis of her 
first charter, and by subsequent conquest, while Massachu- 
setts and Connecticut asserted claims based on their early 
charters. New York insisted on her right to the Ohio valley 
under a treaty with the Iroquois Indians who had asserted 
jurisdiction over it, while the non-claimant states contended 
that the lands should belong to the United States as a whole 
and be at the disposal of Congress for carrying on the war. 
Maryland especially denied the claims of the four states to 
lands in the west and absolutely refused to ratify the Articles 
of Confederation except on condition that the claimant states 
cede their claims to Congress. 1 Inasmuch as the refusal of 
Maryland to ratify the Articles of Confederation on any 
other basis threatened to defeat the accomplishment of the 
plan, Congress on Sept. 6, 1780 requested a liberal cession 
to the United States of a portion of the claims of the several 
states to waste lands in the western country, refusing at the 
same time to go into the question of the validity of the vari- 
ous claims asserted. 2 

The first state to act on this request was New York when 
in 1780 she authorized her delegates in Congress to cede to 
the United States her claims to the western lands. This 
was done by deed in March, 1781,3 accepted by Congress 
in October, I782, 4 granting all the claim to lands west of 
a meridian line drawn through the most westerly point of 
Lake Ontario. Though the claims of New York probably 

1 Journals of Congress, vol. v, p. 160. * Ibid., vol. vi, p. 123. 

3 Ibid., vol. vii, p. 36. 4 fbid,, p. 373. 



1 6 THE CONSTITUTION OF ILLINOIS 

did not actually extend to any part of what is now Illinois, 
her ready cession paved the way for similar action by the 
other states which did lay claim to some or all of the present 
state. This movement was, furthermore, hastened by the 
promise of Congress to erect the lands ceded into distinct re- 
publican states, and in January, 1781 Virginia surrendered 
her claim to the country northwest of the Ohio river. 1 In 
1783 she authorized the giving of a deed, on certain condi- 
tions, 2 which was done in March, 1784. Meanwhile, by 
the Treaty of Peace in 1783, England had been obliged to 
surrender her title to the western lands, thus giving the free 
and undisputed ownership to all of the present state of 
Illinois south of the Connecticut claim to the United States. 
In April, 1785 Massachusetts through her delegates in Con- 
gress ceded her claims to western lands to the United States, 3 
followed in September, 1786 by a similar cession on the part 
of Connecticut, 4 removing thereby the last of the adverse 
claims to the country northwest of the Ohio. 

The year 1787 witnessed the passage of the famous North- 
west Ordinance, the first law of the new government to deal 
with the political division of the newly acquired territory. 
Article V of the Ordinance provided for the formation in the 
territory, northwest of the Ohio, of not less than three nor 
more than five states. The boundaries to the western-most 
state, if three were to be formed, should subject to approval 
by Virginia whose deed of cession had been conditioned on 
a different division 5 be as follows, the rivers Mississippi, 
Ohio and Wabash, a direct line drawn from the Wabash and 
Post Vincennes due north to 'the territorial line between 

1 Cf. Virginia Act of Cession. Thorpe," American Charters, Constitutions and 
Organic Laws," vol. ii, p. 954. 

2 Virginia Act of Cession. Thorpe, vol. ii, p. 954. 

3 Journals of Congress, vol. x, p. 91 ff. * Jbid., vol. xi, p. 160. 
5 Virginia Deed of Cession, 1684. Thorpe, vol. ii, p. 957. 



BOUNDARIES 



MAP SHOWING CLAIMS OF EASTERN STATES TO TERRITORY IN ILLINOIS, CEDED 
BY THEM TO THE UNITED STATES 



WISCONSIN 



La.r.JJ. 




1 8 THE CONSTITUTION OF ILLINOIS 

United States and Canada, and by the said line to the Lake 
of the Woods and the Mississippi, 1 which last line, however, 
was an impossible one. This Act, therefore, designated the 
present western, southern, southeastern and also save for a 
slight change introduced by enabling act of 1818, the east- 
ern boundaries of Illinois, for Virginia subsequently agreed 
to this division into states of the ceded territory. 2 The 
Ordinance further provided that " the boundaries of these 
three states shall be subject so far to be altered that if Con- 
gress shall hereafter find it expedient, they shall have author- 
ity to form one or two states in that part of said territory 
which lies north of an east and west line drawn through the 
southerly bend or extreme of Lake Michigan." 

The Ordinance furthermore stipulated that its " articles 
shall be considered as articles of compact between the 
original states and the people and states in said territory 
and forever remain unalterable unless by common consent." 
This enactment passed by the Congress of the Confedera- 
tion was reaffirmed by the First Congress of the United States 
in 1789 and changed only so far as requisite to adapt it to 
the constitution of the United States. 3 

At the commencement, therefore, of our national life under 
the constitution we find the present state of Illinois included 
within the Northwest Territory where it remained until the 
year 1800. In May of that year the President signed the 
act to divide the Northwest Territory into two separate gov- 
ernments by making Indiana Territory out of all that part 
of the territory northwest of the Ohio River, " which lies to 
the westward of a line beginning at the Ohio opposite to the 
mouth of the Kentucky, and running thence to Fort Recov- 
ery, and thence north until it shall intersect the territorial 

1 The Northwest Territorial Government. Thorpe, vol. ii, p. 957. 

2 Virginia Act of Ratification, 1788. Thorpe, vol. ii, p. 963. 

3 The Northwest Territorial Government, 1789. Thorpe, vol. ii, p. 963. 



BOUNDARIES l g 

line between the United States and Canada," ' Vincennes on 
the Wabash River being made the seat of government. 

This act by which the present state of Illinois became part 
of the Indiana Territory went into effect on July 4th, 1 800 from 
which time no further change of government or organization 
occurred until February, 1809, when the act was approved 
for dividing the Indiana Territory into two separate govern- 
ments, to take effect on March 1st of that year. By this act 
the Territory of Illinois was created out of that part of Indi- 
ana Territory lying " west of the Wabash River and a direct 
line drawn from the said Wabash River and Post Vincennes 
due north to the territorial line between the United States 
and Canada," 2 with the seat of government at Kaskaskia, on 
the Mississippi River. The boundaries thus established for the 
new Territory of Illinois were the same as those provided in 
the Ordinance of 1787 for the westernmost state to be formed 
out of the Northwest Territory. Meanwhile by the purchase 
of Louisiana in 1803 the western boundary to the Illinois 
country, then part of Indiana Territory, ceased to be the di- 
viding line between United States territory and foreign soil 
and Illinois was finally surrounded on all sides by territory 
belonging to the United States or some of them. 

After changing from the first form of Territorial govern- 
ment to the representative form in 1812 the Illinois country 
was in 1817 ready for the most important step open to the 
inhabitants thereof, to-wit the formation of a separate state 
government. Ohio had been admitted as a state in 1802 
with the boundaries designated by the Ordinance of 1787 
for the eastern state to be formed out of the Northwest 
Territory (in case more than three were to be formed) with 
a proviso that if the northern boundary as prescribed by 

1 2 United States Statutes at Large, 58. 

2 Territorial Government of Illinois, 1809. Thorpe, "American Charters, Con- 
stitutions and Organic Laws," vol. ii, p. 966. 



20 THE CONSTITUTION OF ILLINOIS 

that Ordinance should pass to the south of the mouth of the 
Miami River, it should, with the assent of Congress, be 
changed to include the mouth of said river. 1 

In 1816 Indiana was added to the states of the union with 
its eastern, southern, and western boundaries as prescribed in 
the same Ordinance but with its northern boundary ten miles 
north of the east and west line drawn through the southerly 
bend of Lake Michigan. 2 Congress added a proviso that the 
boundaries as determined be ratified by the constitutional 
convention of Indiana " otherwise they shall be and remain as 
now prescribed by the Ordinance" of 1787, whereby it ap- 
pears that Congress expressly recognized that in so chang- 
ing the northern boundary of Indiana it departed from the 
requirements of the Ordinance of 1787 in that respect, a fact 
worth noting in connection with the Illinois-Wisconsin 
boundary controversy some thirty years later, which was 
based on an alleged departure of the same kind in fixing the 
present northern boundary of Illinois. The enabling act 
for Indiana furthermore provided for concurrent jurisdiction 
on the Wabash River with the state to be formed west there- 
of so far as the said river should form a common boundary 
to both, which provision was not, however, expressly men- 
tioned in the constitution of Indiana adopted in the same 
year. 

In December, 1817, the territorial legislature of Illinois 
prepared a memorial to Congress praying for leave to form 
a state government in this territory, 3 which memorial was 
sent to the territorial delegate in Congress, Nathaniel Pope. 
On his motion a bill was introduced to authorize the forma- 
tion of a new state as requested by the memorial, with the 

1 Constitution of Ohio, 1802. Art. vii, 6. Thorpe, "American Charters, Con- 
stitutions and Organic Laws," vol. v, p. 2901. 

* Enabling Act for Indiana, 2. Thorpe, vol. ii, p. 1053. 

* Journal of the Legislative Council, December 8, 1817. 



BOUNDARIES 21 

northern boundary formed by an east and west line drawn 
through the most southerly bend of Lake Michigan in ac- 
cordance with the Ordinance of 1787.* On motion of Mr. 
Pope himself, the enabling act was amended as to the 
boundary provisions by fixing the northern boundary at 
lat. 42 30', its present location, and including the quadri- 
lateral in Lake Michigan bounded by the northern line of 
Indiana, the middle of Lake Michigan, the parallel n. 42 30' 
and the continuation of the western boundary of Indiana. 2 

This amendment as to the northern extent of the state was 
of the utmost importance both to the state of Illinois itself 
and, as Mr. Pope at that time prophesied, to the safety of 
the entire Union. Had the northern boundary been fixed 
as prescribed by the Ordinance of 1787, the state would have 
extended only to about lat. n. 41 37'. By this amendment, 
therefore, offered by Mr. Pope on his own responsibility and 
without instructions from his constituents, fourteen of the 
present northern counties, 3 including a frontage on Lake 
Michigan and the present city of Chicago, were added to the 
state of Illinois. The enabling act was passed as amended 
without opposition, 4 and was approved in April, 1818. 

Mr. Pope's chief arguments for giving Illinois a harbor on 
Lake Michigan were (a) the additional security to the Union 
against a possible desire of the southwestern states to break 
away from the rest by giving Illinois communication through 
the lakes with Indiana, Ohio, Pennsylvania and New York; 
(b) the encouragement of the construction of the Illinois- 
River-to-Lake-Michigan Canal. How wisely Nathaniel Pope 
foresaw the future in thus making Illinois the keystone state 

1 Annals of Congress, 1818, vol. ii, p. 1677. 

* See Boundary Map, infra, p. 23. 

3 Jo Daviess, Stephenson, Winnebago, Boone, McHenry, Lake, Carroll, White- 
side, Lee, Ogle, DeKalb, Kane, Du Page and Cook. 

* Annals of Congress, 1818, vol. ii, p. 1677. isth Congress, 1st Session. 



22 THE CONSTITUTION OF ILLINOIS 

of the West was demonstrated over forty years later when 
the fate of the Union hung largely on the stand to be taken 
by Illinois in the War of the Rebellion. What the addition 
of so much productive territory, agriculturally and industri- 
ally, meant to the state is of course obvious, and it is small 
wonder, therefore, that Wisconsin, claiming that under the 
Ordinance of 1787 the boundary line of Illinois was fixed 
about 6 1 miles further south, should have made an effort to 
recover the territory between the line through the southerly 
bend of Lake Michigan and the latitude n. 42 30'. 

And so indeed she did, and for the ten years prior to the 
admission of Wisconsin as a state in 1848 the agitation of 
this boundary question was revived again and again. On 
the one hand the advocates of the Wisconsin claim, among 
them curiously enough very many of the Illinois citizens 
living in the disputed territory, contended that the Ordinance 
of 1787 was, as it in terms declared itself to be, a compact 
binding upon the United States and the several states, and 
unalterable save with the consent of all parties concerned ; 
that the northern boundary of the southern state to be 
formed out of the territory of Illinois was fixed by the Ordi- 
nance of 1787 at the line through the southernmost part of 
Lake Michigan; and that the line of 42 30' having been 
fixed without their -consent or that of the people living in 
the disputed territory was in violation of the Ordinance of 
1787 and void. On the other side was the contention that 
the northern boundary as fixed by the enabling act of 1818 
was consistent with and not in violation of the Ordinance of 
1787, according to an interpretation of the words of Art. V, 
which will be referred to later on. 

The two sides to this controversy have been so fully and 
clearly stated in several publications x that it is necessary to re- 

1 Wisconsin Historical Society Collections, vol. xi, pp. 494-501. " Boundary 
Dispute between Illinois and Wisconsin," Illinois Historical Society, May, 1904, 
Radebaugh; "The Beginnings of Illinois," Meese. 



BOUNDARIES 2 

MAP SHOWING NORTHERN BOUNDARY OF ILLINOIS AS PRESCRIBED BY THE 
ORDINANCE OF 1787 AND ALTERED BY THE ENABLING ACT OF 1818 




24 THE CONSTITUTION OF ILLINOIS 

fer here only very briefly to the more important aspects. In 
1838 the territorial legislature of Wisconsin sent a memorial to 
Congress protesting against the proposition to limit the Wis- 
consin territory by latitude 42 30' on the south, and asking 
that the territory be extended as far south as the Ordinance 
of 1787 provided. This was presented in 1839 to the Senate, 
and appears never to have been reported out of the judiciary 
committee. 1 In 1839 again the Wisconsin territorial legisla- 
ture adopted resolutions, this time calling for a vote on the 
question of a constitutional convention, and advocating that 
the people in the disputed district be invited to express their 
opinion in the matter and send delegates to a convention if 
called. This was followed by a series of public meetings in 
the disputed territory, culminating in a convention at Rock- 
ford in July, 1840, in which delegates from nine counties 
declared in favor of the Wisconsin claim and their desire to 
belong to the latter state. 2 

But the people of Wisconsin itself were generally opposed 
to this movement, and in spite of repeated appeals by Judge 
Doty, who became governor of the Wisconsin territory in 
1841, and who had from the first been a strong advocate of 
the rights of Wisconsin, nothing further was done until 1842. 
In June of that year Governor Doty, in a letter to the gov- 
ernor of Illinois, spoke of the disputed district as " one over 
which Illinois was exercising an accidental and temporary 
jurisdiction." Finally, after several meetings and ballotings 
in favor of the Wisconsin claim on the part of the cities in 
the disputed territory in Illinois, and several ballotings 
against the forming of a state government to include the 
disputed territory, by the inhabitants of Wisconsin territory 
itself, a last report was sent to Congress setting forth the 
claims of Wisconsin to the disputed territory, but was never 

1 Wisconsin Historical Society Collections, supra, n (i), p. 496. 
a Ibid., pp. 496 and 497. 



BOUNDARIES 2 $ 

acted upon by that body. In the Wisconsin constitutional 
convention of 1846 an attempt was made to introduce a pro- 
vision calling for the determination of this boundary ques- 
tion by the Supreme Court of the United States, but this 
failed of adoption by the convention. 1 

For a while it had seemed as though serious consequences 
might result from the feeling engendered by the dispute, 2 
but the matter was forever settled as a living question when 
in 1848 Wisconsin accepted as her southern boundary the 
line 42 3<y. That this determination of the question did 
not, however, convince everyone of its justice or even legality 
appears from Thwaite's concluding remarks on the contro- 
versy as late as 1888, to the effect that " Wisconsin became 
a state in 1848, stripped by the youthful greed of her south- 
ern neighbor and political manoeuvering in Congress of 8500 
square miles of the richest and most populous territory in 
the entire Northwest." 3 

The supporters of the right of Illinois rested their claim 
on the ground that the words of Article V of the Ordinance 
of 1787, permitting Congress to form one or more states 
" in that part of the said territory which lies north of an east 
and west line drawn through the southerly bend or extreme 
of Lake Michigan," did not mean that the line could not be 
put farther north if Congress so pleased. Governor Ford 
thought the Ordinance of 1787 was not violated by the pro- 
visions as to the boundaries in the enabling act. " There 
is nothing," he writes, " in the Ordinance requiring such 
additional state to be formed of the territory north of that 
line ; another state might be formed in that district of coun- 

1 Wisconsin Historical Society Collections, vol. xi, pp. 498-501. 

2 See language of Governor Doty, Wisconsin Historical Society Collections, xi, 
p. 500, and that of D. A. J. Upham a member of the Wisconsin Legislative Coun- 
cil. Ibid., p. 499. 

8 Wisconsin Historical Society Collections, vol. xi, p. 501. 



26 THE CONSTITUTION OF ILLINOIS 

try though not of it, it need not necessarily include the 
whole. By extending the limits north of the disputed line 
Congress still had power to make a new state in that district 
north of it, not including the portion given to Illinois." x 

Nathaniel Pope himself in offering the amendment chang- 
ing the boundary seems to have believed it to be in accord 
with the Ordinance of 1787, for in the same breath, almost, 
with the proposal of the changed boundary he affirmed the 
binding nature of the Ordinance. 2 Congress, however, 
clearly realized that the proposed boundary was in violation 
of the Ordinance of 1787, as evidenced by the provision re- 
lating to the Indiana northern boundary, 3 as well as by the 
express language of the enabling act for Illinois, Sec. 4: 
" Provided that the same (*". e. the state government) when- 
ever formed shall be republican and not repugnant to the 
Ordinance of the thirteenth of July, 1787, excepting so much 
of said articles as relate to the boundaries of the states therein 
to be formed" * From this it appears, therefore, that Con- 
gress did not consider the Ordinance of 1787 as binding 
upon them and hence they were free to repeal it if they 
chose or ignore any part of it by such enactment, as is 
moreover shown also by the change in the number of in- 
habitants required for the forming of a state, sixty thousand 
in the Ordinance to forty thousand for Illinois in the enab- 
ling act. 

There remained, therefore, two important questions un- 
solved at the time Wisconsin finally accepted the 42 30' 
boundary line, which stood in the way of a clear claim on 
her part to the disputed territory ; first, was Article V of 
the Ordinance of 1787 at all binding on the Congress in sub- 

1 Ford, " History of Illinois," p. 21. 

2 Annals of Congress, 1818, vol. ii, p. 1677. 
8 Annals of Congress, 1818, vol. ii, p. 19. 

4 Enabling Act for Illinois, 1818. Thorpe, vol. ii, p. 967. 



BOUNDARIES 2 ; 

sequent years and, second, if so, did this boundary provision 
violate the requirements of said article. Inasmuch, as the 
United States Supreme Court was never called upon to de- 
cide these questions it must ever remain conjectural as to 
what the legal determination of the question would have been 
in that tribunal of last resort. 

As regards jurisdiction on the Wabash River the enab- 
ling act provided that Illinois should have concurrent juris- 
diction with Indiana, as also on the Mississippi River with 
any state or states to be formed west thereof, so far as said 
rivers should form a common boundary. 

In August, 1818, the first constitution of Illinois ratified 
the boundaries assigned by Congress, omitting the provisions 
as to concurrent jurisdiction mentioned above. At this time 
six other states of the eighteen having constitutions had in- 
serted a clause defining their boundaries, J though none was 
to be found in the New England or in the eastern states 
north of Virginia^ 

In the constitution of 1848 the reference to the boundaries 
was embodied in a separate paragraph and a few minor 
changes made in the wording. 2 The most important change 
from the provision in the first constitution was the addition 
of the proviso at the end of the article, relative to jurisdic- 
tion on the Ohio River, to the northwest shore of which 
Illinois only extended, to the effect that " this state shall 
exercise such jurisdiction upon the Ohio River as she is now 
entitled to, or such as may hereafter be agreed upon by this 
state and the state of Kentucky." 

The article on Boundaries in the present constitution was 
adopted without change from the constitution of 1848, as 

1 Georgia 1798, art. i; Indiana 1816, art. xi, sec. 17; North Carolina 1776, 
xxv; Ohio 1802, art. viii, sec. 6; Tennessee 1796, art. xi, sec. 32; Virginia 1776, 
next to the last paragraph. 

"Journal of the Convention of 1847, P- 57 2 - 



2 8 THE CONSTITUTION OF ILLINOIS 

was also the case in framing the proposed constitution of 
1862. 

Though the language of the Boundary article seems clear 
and unambiguous, questions have frequently arisen both in 
the state and in the federal courts requiring a construction 
of the language and a more definite determination of the 
jurisdiction and territorial extent of Illinois. The western 
boundary line described as running from the middle of the 
Mississippi River at lat. n. 42 30' "thence down along the 
middle of that river to its confluence with the Ohio River," 
has in several cases been held to be the middle of the main 
navigable channel as usually followed, and though the river 
may change imperceptibly from natural causes, the river as 
it runs continues to be the boundary. 1 But if the river 
should suddenly change its course or desert the original 
channel, the boundary remains the middle of the deserted 
river bed. 2 Furthermore, it is the main permanent river 
that constitutes the boundary, not that part which flows in 
seasons of high water and is dry at other times. Although 
the physical boundary of Illinois extends only to the middle 
of the river as defined above, its jurisdiction for entertaining 
suits is concurrent over the whole river with the states of 
Iowa and Missouri, by virtue of the Enabling Act for Illinois 
and those for the above two states. 3 So it was held that Illi- 
nois courts could take jurisdiction of a case growing out of a 
collision near the Missouri shore of the Mississippi River, 
though beyond the physical boundary of the state, and apply 
the laws of Illinois to the settlement of the case. 

1 St. Louis v. Rutz, 138 U. S., 249; Iowa v. Illinois, 147 U, S., I. The enabling 
act for Missouri, 1820, expressly designated the middle of the main channel of 
the Mississippi River as the boundary for that state along that river, and the 
enabling act for Illinois designating merely " the middle of the river " was held 
to mean the same thing. 

'Buttenuth v. St. Louis Bridge Co., 123 Illinois, 536. 

3 Thorpe, " American Charters, Constitutions and Organic Laws." 



BOUNDARIES 2 9 

The boundary on the Ohio River is expressly limited by 
the enabling act of 1818 to be along the northwestern 
shore, and hence Illinois can exercise no jurisdiction over 
the Ohio River except by consent of Kentucky. The rights 
and extent of Illinois along that boundary have not been ad- 
judicated directly, but in one case x involving the boundary 
between Indiana and Kentucky, the United States Supreme 
Court, affirming earlier cases, says " it must be assumed as 
indisputable that the boundary of Kentucky extends to low- 
water mark on the northwestern banks of the Ohio River." 
In another case 2 the same court had said " when a great 
river is the boundary between two states and one state is 
the original proprietor and grants territory on one side only" 
as was the case when Virginia made her original grant of 
land "it retains the river within its boundaries and the 
territory granted extends to the low-water mark on its side 
of the river." This being true of Indiana's rights on the Ohio 
which were not expressly limited by the enabling act for 
that state, it is a fortiori true for Illinois the extent of which 
is expressly limited. But with consent of Congress, Illinois 
might by agreement with Kentucky obtain jurisdiction over 
the Ohio River and for that purpose the constitutions of 
both 1848 and 1870 contain a provision regarding such 
agreement with Kentucky. 3 To make such agreement bind- 
ing the consent of Congress is necessary 4 though such con- 
sent need not be expressed but may be implied. 5 

1 Henderson Bridge Co. v. Henderson City, 173 U. S., 592. 

* Hadley v. Indiana, 5 Wheaton, 379. 

3 See art. i Constitution of Illinois. Though this proviso has now been in the 
constitution of Illinois for over sixty years, and relates to a matter which would 
seem to be of considerable importance to the state, no record can be found in 
the State Department of either Illinois or Kentucky of any attempt to come to 
any such agreement as this proviso contemplates. 

* Virginia v. West Virginia, 1 1 Wallace, 39. 
5 Virginia v. Tennessee, 148 U. S., 503. 



30 THE CONSTITUTION OF ILLINOIS 

By the enabling acts for both Indiana and Illinois, these 
states are given concurrent jurisdiction over the Wabash 
River, and the decisions relating to jurisdiction of this state 
on the Mississippi River are equally applicable to the Wabash 
River boundary. The extent of the territory and jurisdic- 
tion of Illinois into Lake Michigan were judicially deter- 
mined to be as provided by the enabling act and the pres- 
ent constitution of Illinois in the case of ///. Central R. R. v. 
Illinois, 146 U. S., 387. 

Finally, though the northern boundary which as we have 
seen was the cause of an extended controversy for almost a 
decade, seems not to have been the subject of judicial 
opinion, it appears from a letter of Professor John E. Daviess, 
of the United States Coast and Geodetic Survey, written to 
the Secretary of the Wisconsin State Historical Society, that 
the line as it is now marked out by boundary posts does not 
represent the parallel 42 30' as the constitution of each 
state prescribes, " but zigzags to and fro, and should go 
farther south than it now is about three-fourths of a mile 
in the western part of Wisconsin, and farther north in and 
east of Beloit." * 

1 Wisconsin Historical Society Collections, xi, p. 501 n. 



ARTICLE II 

BILL OF RIGHTS 1 

THE constitutional practice of embodying in the funda- 
mental law of a state a declaration of the rights and liberties 
of the individuals in that state, a practice so familiar to us 
living under the constitution of the United States as to be 
regarded almost as a matter of course, is distinctively Amer- 
ican in origin, and had its genesis less than a century and a 
half ago. The famous Virginia Bill of Rights drawn up by 
George Mason and adopted on June 12, 1776, by a conven- 
tion of members of the old Virginia House of Burgesses, 
was the first embodiment of the principle that certain rights 
of the individual are so sacred that their inviolability should 
be secured in the highest expression of the sovereign will of 
the people. 

The example of Virginia in thus formally declaring certain 
rights and liberties of the people to pertain to them and 
their posterity as the basis and foundation of government, 
was followed in every one of the eleven states which adopted 
constitutions following the resolution of the Continental 
Congress in May, 1776, advising such action by the colonies. 

Never had the belief in the existence of inviolable personal 
rights been so general as in the century preceding the 
American Revolution, and nowhere had this doctrine re- 

1 The interpretation of Magna Carta given here is designed to show the views 
generally accepted among American constitution makers, and is not intended to 
represent the conclusions of recent critical scholars, like Maitland and McKechnie. 

31 



32 THE CONSTITUTION OF ILLINOIS 

ceived wider recognition than among the American colonists 
The principle of individual liberty, religious, political and 
personal, was so fundamental in the political thought of thai 
time and place that the idea of guaranteeing this freedom b> 
declaring it in the basic law of the government met with im- 
mediate and universal approval and acceptance, not only ir 
the subsequent state constitutions, and in the federal consti- 
tution in this country, but in the constitutions of othei 
countries as well. 1 

To say that the idea of constituting these fundamenta 
rights a part of the basis of government originated in the 
American colonies in 1776, is not to say that the belief ir 
the existence of such rights originated then and there 
Indeed the consciousness of the existence of such rights 
and even the formal declaration of their nature and exteni 
began centuries before, and extended through a period dur- 
ing which the constitutional principles and political philos- 
ophy from which these rights and liberties were evolved anc 
developed, underwent many radical changes. 

The doctrine of individual rights free from interference 01 
even destruction by the state was unknown to the politica 
philosophy of the Greeks, to whom the state was absolutely 
sovereign. Nor does this principle find recognition amon 
the Romans or even in the middle ages, which knew indi- 
vidual rights only in the shape of contractual relations aris- 
ing out of an interest in the soil. 2 But in England certair 
customs and rules of the common law had from early 
times afforded some measure of protection, for individuals as 
regarded their personal liberty and security, and the viola- 
tion and destruction of such liberty and security at the hands 
of the king aroused that protest and resistance which finally 

1 The French Declaration of the Rights of Man, 1793. The constitutions o 
the South American countries have followed this practice as well. 
' l Scherger, "The Evolution of Modern Liberty." Introduction. 



BILL OF RIGHTS 33 

culminated in the first formal recognition of the rights of 
English subjects, the Great Charter of King John in 1215. 

In this, the earliest charter of liberties, is found the model 
for many of the provisions of the Virginia Bill of Rights, the 
prototype of all the others. So, for instance, the prohibition 
on excessive fines and on cruel and unusual punishments is 
directly traceable to chapter 20 of the Great Charter, un- 
reasonable seizure is forbidden in effect in chapter 38, and 
the protection of trial according to the law of the land was 
virtually embodied in chapter 39. r Still other provisions of 
the Great Charter were adopted by some bills of rights 
framed immediately after that of Virginia, and copied from 
them into the later constitutions, among which provisions 
may be mentioned the assurance of right and justice without 
sale, denial, or deferment, 2 and the right of free egress from 
and ingress to the country.3 

These several guarantees embodied in the Great Charter 
were repeatedly affirmed by later kings, only to be as re- 
peatedly violated, until again solemnly declared by the peo- 
ple, this time through their representatives in Parliament, in 
the second great charter of liberties, the Petition of Right to 
Charles I in 1628. In this document the principal ground 
of complaint was the violation of the due process of law pro- 
visions in the Great Charter and the statute 20 Edward III., 
through the application of martial law in times of peace, and 
the unjust quartering of soldiers and sailors upon the 
subjects. 4 

In 1679 the Habeas Corpus Act 5 reaffirmed another com- 
mon law right which a century later was regarded as of 
fundamental importance by the framers of many of our 

1 Stubbs, " Select Charters Illustrative of English Constitutional History," p. 
296. 

1 Magna Charta, ch. 40. 3 Ibid, ch. 42. 

* Stubbs, " Select Charters, etc.," p. 5 1 5. 5 IbiJ., p. 5 1 7. 



34 



THE CONSTITUTION OF ILLINOIS 



American bills of rights, though not found in the Virginia 
constitution of 17/6. Then, finally, in 1689 the English 
Bill of Rights, declared upon the accession of William and 
Mary, in denunciation of the abuses of the late King James 
II. as a warning and guide to the new rulers, still further in- 
creased the number of individual rights thus established in 
England by formal declaration. Among the additional se- 
curities provided were the fundamental rights of petition, of 
bearing arms, of free elections and of freedom of speech and 
debates in the legislature. 1 

In addition to the rights thus formally established by 
the series of English constitutional documents, there were 
certain other doctrines of the common law which every Eng- 
lish subject regarded as his birth-right, and which seemed 
of sufficient importance to the colonists to deserve embodi- 
ment in their enumeration of inviolable rights. Some of 
these rights had indeed always been kept sacred in England 
by the crown, but others had been repeatedly ignored, and 
all were the heritage of the colonists, and were deemed 
worthy of the new protection which the written constitutions 
were meant to guarantee. 

Such then were some of the sources from which the 
American statesmen in 17/6 derived their ideas of funda- 
mental rights, ideas in no sense, therefore, newly discovered 
or declared at that time. On the contrary they were, in the 
language of the English Bill of Rights itself, " ancient rights " 
to which every English subject had been entitled by the 
course of the common law and the statutes. 

But the American bills of rights contained still other 
declarations, which had not previously been embodied in any 
charter or petitions, and which were not recognized by the 
common law, the origin of which is traceable to a different 

1 Stubbs, " Select Charters Illustrative of English Constitutional History," p. 
523. 



BILL OF RIGHTS 



35 



source, namely, the then recent emphasis and general accep- 
tance of the theory of natural law as developed in the works 
of Milton, Harrington and Locke in England, and in those 
of eminent writers of continental Europe, during the seven- 
teenth century. 

The theory of natural law, originated almost five centuries 
before Christ by Heraclitus and developed in Greece by the 
Stoics and their successors, could come to no fruition in 
the birth of private rights in that period when the sovereignty 
of the state was absolute. 1 But the effect of this theory 
upon the development of the doctrine of natural rights, two 
thousand years later, when political concepts had radically 
altered, was most potent. 

In the philosophical theory of natural law as expounded 
in the seventeenth century was embodied the concept of 
inherent, natural, inalienable rights appertaining to men as 
men, and which no government could rightly abridge or 
destroy. More than a century before the American Revolu- 
tion, Milton had defined the purpose of government to be the 
preservation of the liberty, peace and safety of the people, 
and had declared that all men are naturally born free, and that 
liberty of the press and of conscience should be respected. 
Developing this theory still further, Locke contended that 
men lost none of their natural rights by entering into the 
state of society, but surrendered only so much of their lib- 
erty as was absolutely necessary to establish government. 2 

These views, championed by many noted publicists of the 
seventeenth and eighteenth centuries, were well known to 
the leaders among the American colonists, in whose tem- 
peraments they found a ready response, and whose diffi- 
culties they seemed so satisfactorily to solve. The Massa- 
chusetts Body of Liberties had as early as 1641 contained a 

1 Scherger, " The Evolution of Modern Liberty," ch. I. 
1 Ibid., ch. ii. 



36 THE CONSTITUTION OF ILLINOIS 

statement and guarantee of many of these rights, 1 and a cen- 
tury or more later James Otis, John Adams and Samuel 
Adams, filled with enthusiasm for the doctrine of natural 
law and natural rights, had made this captivating theory the 
common knowledge of the American colonists. 2 

Inflamed with the memory of recent tyrannies and op- 
pressions, engrossed in the terrible struggle they had just 
commenced in behalf of their liberties, and conscious that 
even a democracy furnishes no necessary guarantee of lib- 
erty, the colonists almost inevitably accorded to the declara- 
tion of the nature and purpose of government, and of the 
rights of liberty of conscience, speech, and press so important 
a place in the structure of their constitutions. 

When, therefore, in 1818 the framers of the first Illinois 
constitution were confronted with the problem of drawing 
up a statement of the fundamental law for the new common- 
wealth, there was nothing novel, either in the doctrine of 
inviolable personal rights and liberties or in the practice of 
guaranteeing them in the constitution by express enumera- 
tion. Not only had all of the eighteen state constitutions in 
force when Illinois became a state contained such a decla- 
ration of individual rights, as had also the Declaration of 
Independence and the federal constitution, but in France 
also had this principle received effective recognition in the 
Rights of Man prefixed to the Constitution of I/93. 3 

Of the most immediate and determining influence, no 
doubt, in shaping the Illinois bill of rights was the famous 
Northwest Ordinance of 1787, under which, with but slight 
changes, the framers of the Illinois constitution were then 
living, and which for thirty years past had been the organic 

1 Stimson, " Federal and State Constitutions of the United States," Book II, 
ch. i. 

1 Scherger, supra, ch. ix. 

3 Lieber, " Civil Liberty and Self-Government," p. 536. 



BILL OF RIGHTS 



37 



law of the territory now about to be formed into a state. 
This Ordinance contained six articles of compact, of which 
the first two constituted virtually a bill of rights, which 
though shorter and more concise were practically as com- 
prehensive as many of the more verbose declarations in the 
existing state constitutions. 1 The authorship of this cele- 
brated Ordinance seems to be a matter of dispute, but 
whether it was chiefly the work of Putnam, Cutler, Dane or 
Jefferson, or, what is more probable, a combination of the 
ideas of them all, it unquestionably offered a more natural 
and familiar model for the framers of the first Illinois consti- 
tution than did even the Virginia bill of rights and its copies 
in the other states, all of which undoubtedly exerted a con- 
siderable influence as well. 



Section /. 2 The first section of the bill of rights of the 
constitution of Illinois begins by declaring men to be by 
nature free and independent, and to possess those inherent 
and inalienable rights which, as has been seen, occupied 
so important a place in the political philosophy of the 
seventeenth century. The constitution of 1818 had de- 
clared that "all men are born free and independent and 
have certain inherent and indefeasible rights, among which 
are those of enjoying and defending life and liberty, and of 
acquiring and possessing and protecting property and repu- 
tation, and of pursuing their own happiness," using language 

1 Thorpe, " American Charters, Constitutions and Organic Laws," vol. ii, p. 957. 

2 "All men are by nature free and independent and have certain inherent and 
inalienable rights; among these are life, liberty and the pursuit of happiness. To 
secure these rights and the protection of property, governments are instituted 
among men, deriving their just powers from the consent of the governed." Con- 
stitution of Illinois, 1870, Art. ii, Sec. I. 







38 THE CONSTITUTION OF ILLINOIS 

very similar to that of the Virginia Bill of Rights of 1776,' 
and of the Declaration of Independence in the same year. 2 

The assertion that all men are born equally free and inde- 
pendent was given further effect in Illinois by the prohi- 
bition on slavery, 3 whereas in Virginia this declaration was 
believed not to apply to the negroes. 4 Though property 
and reputation were first included among the fundamental 
individual rights, along with life, liberty, and the pursuit of 
happiness by the Massachusetts Body of Liberties (Pre- 
amble) 5 in 1641, this broader enumeration was to be found 
in only one state constitution in 1818, namely, that of Penn- 
sylvania, I7QO, 6 from which apparently the whole of this sec- 
tion in the Illinois constitution of 1818 was taken. 

The essentially American doctrine of the sovereignty of 
the people, and the principle of the basis and purpose of 
government were declared in the words, " all power is in- 
herent in the people, and all free governments are founded 
on their authority and instituted for their peace, safety and 
happiness," which had been stated in precisely the same 
terms in the constitutions of Indiana, 1816, and Pennsyl- 
vania, 1790, and in very similar language in a number of the 
other state constitutions. 

In the constitution of 1848 all these provisions were 
adopted from the first constitution without the slightest 
change, though the original committee report included in 
addition an express declaration of the right of the people to 
alter the government whenever the public good requires it; 
a provision found in the original Virginia Bill of Rights and 

1 Constitution of Virginia, 1776. Bill of Rights, sec. I. Thorpe, " American 
Charters, Constitutions and Organic Laws," vol. vii, p. 3812. 

2 Declaration of Independence, Par. 2. Thorpe, supra, vol. i, p. 4. 

3 Constitution of Illinois, 1818, Art. vi, Sec. I. Thorpe, vol. ii, p. 980. 
4 Stimson, " Federal and State Constitutions of the United States," p. 21. 
6 Stimson, supra, p. 20. 6 Art. ix, Sec. I. 



BILL OF RIGHTS 39 

in the Declaration of Independence, and upon the apparently 
self-evident principle of which rested the theoretical justifi- 
cation of both the English and the American Revolutions. 1 

In the constitution of 1870 the somewhat prolix statement 
of the earlier constitutions was abandoned for the concise 
wording of the Declaration of Independence, with the addi- 
tion of the protection of property as one of the purposes of 
government. A change in wording that aroused some oppo- 
sition in the constitutional convention of 1869 was the un- 
qualified declaration that all men are by nature independent, 
in place of the modified form "equally independent" con- 
tained in the former constitutions. Several suggestions were 
made to alter this by adding qualifying phrases or by striking 
it out altogether as being contradictory to the real place of 
man before God and among his fellowmen, but this absolute 
declaration of man's independence was retained, though not 
found in the early constitutions nor even in the Declaration 
of Independence, and contained in but three of the thirty-six 
other constitutions in force in 1870. 

In Illinois, as has been seen, the assertion of man's inde- 
pendence was never qualified by considerations of race or 
color, but extended in effect, as it did in terms, to all 
men. Liberty and property as used in the constitution 
have been repeatedly defined by the courts in cases involv- 
ing alleged violations of the due process of law provisions, 
and may therefore best be considered in the discussion of 
the following section. 

Section 2* Section 2 contains the prohibition against 

1 In the proposed constitution of 1862, the convention adopted the exact lan- 
guage of the Declaration of Independence, with reference to these personal rights, 
adding, however, the light of acquiring, possessing and protecting property. 

2 ' No person shall be deprived of life, liberty or property without due process 
of law." Constitution of Illinois, 1870, Art. ii, Sec. 2. 



40 THE CONSTITUTION OF ILLINOIS 

deprivation of life, liberty or property without due process 
of law, which has proved to be the most effective guarantee 
of individual rights as against the government, not only as 
interpreted and enforced by the state courts but also as ap- 
plied by the federal courts under the fourteenth amendment 
of the United States constitution. The first constitution of 
Illinois declared that no freeman should be imprisoned or 
disseized of his freehold, liberties or privileges, or outlawed 
or exiled or in any manner deprived of his life, liberty or 
property but by the judgment of his peers or the law of 
the land. This provision was virtually a copy of chapter 
39 of the Great Charter of King John of 1215 as amended 
and affirmed by chapter 35 of the Great Charter of Henry 
III., two years later, 1 but with the addition of the phrase, 
" or deprived of his life, liberty or property." 

The second article of compact in the Northwest Ordinance 
of 1787 had also declared that no man should be deprived 
of liberty or property but by the judgment of his peers or 
the law of the land, and similar provisions had been embodied 
in more than two-thirds of the state constitutions in force in 
1818, though not generally limited to freemen, a limitation 
probably retained in the constitution of Illinois merely by 
oversight, since slavery was prohibited by the Constitution. 2 

No change was made in the wording of this section until 
the adoption of the present constitution, when the essence of 
the provision was embodied in the short statement of the 
present section copied from amendments V and XIV of 
the federal constitution, the latter of which had been 
adopted but a year before the constitutional convention of 
1869 met in Springfield. At that time about one third of 
the state constitutions still retained the original form, " but 
by the judgment of his peers " which meant trial by jury 

1 Stubbs, " Select Charters," pp. 301, 346. 
1 See supra, p. 38. 



BILL OF RIGHTS 4! 

and " or the laws of the land " which meant indictment and 
procedure at common law ' though a number employed its 
now famous equivalent " by due process of law." This phrase 
appeared first in the Statute 28 Edward III., chapter 3, and 
was not found in any state constitutions prior to the adop- 
tion of Amendment V in the constitution of the United 
States. 

This constitutional guarantee of life, liberty and property 
against deprivation save by due process of law, has been 
expounded and applied in an enormous mass of cases in 
this state, as in all the others, which it would be impossible 
to discuss in detail, though a few general definitions may be 
helpful in showing the remarkable scope of this apparently 
simple provision. 

" Liberty," as used in the constitution, means not only 
freedom from servitude and restraint, but also the right of 
every man to be free in the use of his powers and faculties, 
and to adopt and pursue such a vocation or calling as he may 
choose, subject only to the restraint necessary to secure the 
common welfare. 2 

" Property " is not only the physical thing which may be 
the subject of ownership, but also the right of dominion, 
possession and power of disposition over it, and includes as 
well the right to acquire it in any lawful mode or by follow- 
ing any lawful pursuit which the citizen in the exercise of 
the liberty guaranteed may adopt. 3 

The privilege of contracting is, therefore, both a liberty 
and a property right within the protection of the constitu- 
tion, 4 a doctrine which has caused the invalidation of a large 
number of laws passed for the protection of laborers. A 

1 Stimson, " Federal and State Constitutions of fhe United States," p. 16. 

2 Braceville Coal Company v. People, 147 Illinois, 66 (1893). 

* Ibid. 

4 Frorer v. People, 141 Illinois, 171 (1892). 



4 2 THE CONSTITUTION OF ILLINOIS 

number of cases deal with the question of what are " vested 
rights," as these only are property within the protection of 
this clause. So, for example, there is no vested right in 
existing rules of evidence ' nor to particular remedies * and 
in general mere rights in expectancy, as the expectancy of 
inheritance are not vested rights. 3 Rights of action are, 
however, protected, 4 as are also accrued defences. 5 

"Due process of law "has been variously defined and 
variously interpreted, but no definition can be at the same 
time comprehensive and accurate. It is synonymous with 
" the law of the land," and Cooley cites with approval the 
definition of this latter phrase given by Webster in the 
Dartmouth College Case : " By the ' law of the land ' is 
most clearly intended the general law, a law which hears 
before it condemns; which proceeds upon inquiry and ren- 
ders judgment only after trial. The meaning is, that every 
citizen shall hold his life, liberty, property and immunities 
under the protection of the general rules which govern 
society." 6 Very similar is the definition given by the Illi- 
nois Supreme Court. 7 

Without examining in detail the different applications of 
the requirement of due process it suffices here to mention 
that it demands the equal protection of the laws, excluding 
unreasonable class legislation, that is, legislative discrimina- 
tion not based on reasonable differences, 8 laws tending to 
grant monopoly rights, and the imposition of special burdens 

1 Meadowcroft v. People, 163 Illinois, 56 (1896). 

2 Smith v. Bryan, 34 Illinois, 564 (1864). 

3 Cooley, " Constitutional Limitations" (ed. 7), p. 512. 
* Van Imvagen v. Chicago, 61 Illinois, 31 (1871). 

5 McDuffee v. Sinnott, 119 Illinois, 449 (1887). 

6 Cooley, " Constitutional Limitations," p. 502. 

7 Millet v. People, 171 Illinois, 299 (1898). 

8 Ibid. 



BILL OF RIGHTS 



43 



and liability without just cause. 1 In the judicial proceed- 
ings themselves, it makes, above all, the requirement of 
competent jurisdiction in the tribunal undertaking to affect 
the property rights of individuals. 2 

The most important limitation on the individual's right 
to the undisturbed enjoyment of his property, besides the 
right to eminent domain, and the taxing power, is the so- 
called police power of the state. But even this power can 
be exercised only within the bounds necessary to protect 
the public health, safety and comfort, and any interference 
beyond that violates the guarantee of due process of law. 3 

Section j. 4 Liberty of conscience and freedom of religious 
worship were of course regarded by the American colonists 
as one of the most essential of the inherent, inalienable rights 
of man, and the religious persecutions in their mother country 
had profoundly convinced them of the need of guaranteeing 
this right against governmental interference. Accordingly 
there is found in the first constitutional declaration of man's 
rights, viz., the Virginia Bill of Rights of 1776, a guarantee 
of religious freedom, notwithstanding that the Anglican 
church was then the established church of that common- 
wealth. Similar guarantees of the liberty of conscience and 

1 Bessette v. People, 193 Illinois, 334 (1901). 

* Bickerdike v. Allen, 157 Illinois, 95 (1895). 
3 Ruhstrat v. People, 185 Illinois, 133 (1900). 

* " The free exercise and enjoyment of religious profession and worship, with- 
out discrimination shall forever be guaranteed : and no person shall be denied 
any civil or political right, privilege or capacity on account of his religious opin- 
ions; but the liberty of conscience hereby secured shall not be construed to dis- 
pense with oaths or affirmations, excuse acts of licentiousness or justify practices 
inconsistent with the peace or safety of the state. No person shall be required to 
attend or support any ministry or place of worship against his consent, nor shall 
any preference be given by law to any religious denomination or mode of wor- 
ship." Constitution of Illinois, 1870, Art. ii, Sec. 3. 



44 THE CONSTITUTION OF ILLINOIS 

religious worship were inserted into all the subsequent con- 
stitutions adopted before Illinois became a state, 1 with the 
single exception of Louisiana, 1812, in which state the pre- 
vailing religion was that of the Roman Catholic Church, 2 
and the first article of compact of the Northwest Ordinance 
declared that no person demeaning himself in a peaceable 
and orderly manner should ever be molested on account of 
his mode of worship or religious sentiments.3 

In the first constitution of Illinois the guarantee of liberty 
of conscience and religion contained detailed provisions 
taken from a number of different constitutions, relative to 
the natural and indefeasible right to worship according to 
the dictates of one's own conscience and the freedom from 
control in that respect by any human authority; immunity 
from taxation for the support of any place of worship or 
ministry ; prohibition on giving preference by law to any 
religious establishment or mode of worship, and a require- 
ment that no religious test ever be demanded as a qualifica- 
tion to any office in the state. These provisions were all 
adopted verbatim into the constitution of 1848, as also into 
the proposed constitution of 1862. In the convention of 
1847 tne committee reported a qualification on the prohibi- 
tion against being compelled to erect or support a place of 
worship against one's consent, by the addition of the words 
" contrary to what he has deliberately and voluntarily en- 
gaged to perform." This qualifying phrase, which was 
found in a number of the other constitutions, might have 
proved to be of considerable importance had the state courts 

1 In a number of the states, however, political equality was assured to those 
only who professed the Protestant faith. 

2 The French Declaration of the Rights of Man had, however, guaranteed the 
free exercise of religion. Rights of Man, section 7. Lieber, " Civil Liberty and 
Self-Government," p. 537. 

3 Thorpe, " American Charters, Constitutions and Organic Laws," vol. ii, p. 960. 



BILL OF RIGHTS 



45 



taken the same view of the language of this prohibition that 
the United States Supreme Court did of the prohibition of 
the thirteenth amendment of the federal constitution, by 
which " involuntary servitude " was held to mean personal 
service, involuntary at time of performance even though 
voluntarily contracted for. 

The section in the present constitution with reference to 
religious freedom and liberty of conscience is even more 
comprehensive than that of the former constitutions, though 
in substance quite similar. The added provision that " no 
person shall be denied any civil or political right, privilege 
or capacity on account of his religious principles " had been 
reported out by the committee in the convention of 1847, 
but was omitted in the section as finally adopted. It was 
introduced to cover both the matter of competency of wit- 
nesses as found in the New York constitution of 1846 as 
well as the then existing Illinois provision as to religious 
tests as qualifications for office, omitted in the present 
constitution. 

The express limitation of the guarantee of liberty of con- 
science so as to permit the requirement of oaths or affirma- 
tions, and to exclude the commission of acts of licentious- 
ness or practices inconsistent with the peace or safety of the 
state, was not found in the constitution of 1848, though the 
then recent trouble with the Mormons would have seemed 
to call especially for such a proviso at that time. In the 
convention of 1869 the introduction of this proviso, then 
found in over one-third of the existing constitutions, called 
forth considerable opposition to its adoption, on the ground 
that the proviso was inconsistent with the preceding guar- 
antee of religious freedom. 1 

The last sentence of the section, viz., the prohibition on 

1 Debates of the Convention of 1869, p. 1560. 



4 6 



THE CONSTITUTION OF ILLINOIS 



compelling attendance on or support of any ministry or 
place of worship, and on giving any preference by law to 
any religious denomination or mode of worship presents no 
material change from the earlier provisions on these points. 
In the convention of 1869 there were presented four peti- 
tions, requesting an express constitutional protection of the 
right to observe the seventh day of the week as the Sabbath, 
and an additional section exempting persons who consci- 
entiously observe the seventh day as the Sabbath from 
answering civil process on that day, was moved and adopted, 
but on reconsideration was stricken out. 2 

The Illinois cases construing this section of the constitu- 
tion are few in number, but some of the general principles 
to be gathered from the construction of similar provisions 
in other constitutions will show how the courts have in gen- 
eral viewed the protection embodied in such provisions. 
The express prohibitions of the section guarantee not only 
religious toleration, but religious equality. They do not 
however prohibit the authorities from such solemn recogni- 
tion of a superintending Providence in public transactions 
and exercises as the general religious sentiment of mankind 
inspires. 1 Nor does the right of free thinking and free 
speech justify blasphemy, or prevent its punishment by the 
law, when uttered in a wanton manner with a wicked and 
malicious disposition and not in a serious discussion upon 
any controverted point in religion. 2 La\vs requiring the 
observance of the Christian Sabbath are almost universally 
upheld as not violating this constitutional provision, though 
Cooley questions the entire soundness of that view. 3 

In Illinois under the present constitution the right to 

1 Debates of the Convention of 1869, pp. 1566, 1777. 

* Cooley, " Constitutional Limitations." p. 668. 

* Ibid., p. 673. ^Ibid., p. 675. 



BILL OF RIGHTS 47 

testify is included among the civil rights, privileges, and 
capacities which are protected by this section against denial 
by reason of religious opinions, 1 though under the earlier 
constitutions an atheist was, in accordance with the common- 
law rule, incompetent as witness. 2 The constitution of 1870, 
therefore, abrogated all restrictions as to the competency of 
witnesses on account of defect of religious beliefs 

Section 4..* Liberty of speech and of the press, under cer- 
tain limitations, was protected in England by the principles 
of the common law, and considered essential to the nature of 
a free state. But in England, for years before the American 
Revolution, there had been serious invasions of this right, 
and in the American colonies there had never been any real 
freedom of speech or of the press. 5 In the seventeenth cen- 
tury Milton had in England championed these liberties in 
his Areopagitica^i\& the numerous appeals to natural law 
by James Otis and John and Samuel Adams in the Ameri- 
can colonies, all included them among the fundamental in- 
dividual rights. 6 The Virginia Bill of Rights declared the 
freedom of the press to be one of the great bulwarks of lib- 
erty which could never be restrained, and in 1818 the federal 
constitution and all the state constitutions but two, viz., New 
Jersey, 1776, and New York, 1/77, contained similar pro- 

1 Ewing v. Bailey, 36 Illinois Appeals, 191 (1890). 

2 Central Military Tract Railroad Company v. Rockafellow, 17 Illinois, 541 
(1856). 

3 Elrouek v. People, 134 Illinois, 139 (1890). 

4 " Every person may freely speak, write and publish on all subjects, being re- 
sponsible for the abuse of that liberty, and in all trials for libel, both civil and 
criminal, ihe truth when published with good motives, and for justifiable ends 
shall be a sufficient defence." Constitution of Illinois, 1870, Art. ii, Sec. 4. 

6 White, " The Constitution of Pennsylvania," ch. V. 

6 Scherger, " Evolution of Modern Liberty," ch. IX. 



48 THE CONSTITUTION OF ILLINOIS 

visions as to freedom of the press, a number of them ex- 
pressly protecting also the liberty of speech. 

In the first constitution of Illinois freedom of the press was 
guaranteed to all who examined the proceedings of any 
branch of the government, this having been the point of at- 
tack by the English government in the past, and to every 
citizen was guaranteed the right to freely speak, write and 
print on any subject, being responsible for the abuse of that 
liberty. These provisions were embodied without change 
in the constitution of 1848 and in the proposed constitution 
of 1862. 

In the constitution of 1870 all but the last sentence was 
omitted, which contained the essence of the entire section, 
and every one of the twenty-six other state constitutions 
then in force guaranteed freedom of the press, which of 
course includes freedom of speech, either to all persons, as 
is the case in the Illinois constitution of iS/o, or to all citi- 
zens, as was done in the earlier Illinois constitutions. 

The establishment of truth when published with good 
motives and justifiable ends, as a sufficient defense in all 
trials of libel, both civil and criminal, was inserted to protect 
more specifically the liberty of press previously guaranteed 
in general terms. In the constitution of 1818 it was declared 
that in prosecutions for the publication of papers investigat- 
ing the official conduct of officers, or of men acting in a 
public capacity, or where the matter published is proper for 
public information, the truth might be given in evidence, 
and that in all indictments for libels the jury should have 
the right of determining both the law and the fact, as in 
other cases. 

At common law there had been an important distinction 
between civil actions for libel and criminal prosecutions for 
the same as to both of these provisions, viz., the admissibility 
of truth as a defense, and the function of a jury in a trial for 



BILL OF RIGHTS 49 

libel. While truth of the matter published was always a 
defense to a civil action for libel, since a man had no right 
to a better reputation than his real character deserved and 
was therefore not injured by any true statement concerning 
him, in criminal prosecutions for libel, the truth of the mat- 
ter published being rather a greater provocative to the per- 
son libeled to retaliate by acts involving a breach of peace 
which last consideration was the original basis of all com- 
mon-law jurisdiction of crimes could not be pleaded as a 
defense. 1 This rule as regards criminal libel was changed 
in England by Lord Campbell's Act, 6 and 7 Victoria, chap- 
ter 96, and the provision in the Illinois constitution of 1818 
expresses in other terms the general form of the change in 
law admitting truth as a defense when published with good 
motives and for justifiable ends. 

As regards the function of the jury in trials for libel, the 
common-law rule in civil actions left it to the jury, if the 
words published were ambiguous, to decide whether or not 
they were libellous, that is, to pass on both the law and the 
fact. The same doctrine was asserted in several early cases 
as regards criminal prosecutions for libel, but was subse- 
quently greatly controverted, and was certainly an anomalous 
one in the criminal law. 2 But by the Fox Act of 1774 the 
jury was permitted to render a verdict of guilty or not guilty 
upon the whole matter in issue, and thus act as judges both 
of the law and the fact in criminal prosecutions also. The 
provisions in the Illinois constitution, therefore, adopted the 
later statutory rule in both of these regards as guaranteeing 
fundamental rights, as had also previously been done in six 
other constitutions of that time. The constitution of 1848 
and the proposed constitution of 1862 both contained the 
above provisions without the slightest change. 

1 Chase's Blackstone, Book III, ch. VI. a Ibid. 



50 THE CONSTITUTION OF ILLINOIS 

In the present constitution of Illinois, the truth when pub- 
lished with good motives and for justifiable ends was made a 
sufficient defense in both civil and criminal trials, reaffirm- 
ing the former provision as to criminal trials, and also plac- 
ing the defendant in a civil suit under the same constitutional 
protection. By 1870 the great majority of the other states 
had inserted a constitutional provision like that in the Illinois 
constitution of either 1848 or 1870. In the convention of 
1869 the newspapers of the state sought additional protec- 
tion in a petition requesting an addition to the provision as 
to libel to the effect that " it shall in all cases be incumbent 
upon the plaintiff to prove malice," a change in the common- 
law rule which might have proved a most undesirable piece 
of constitutional legislation, and which was wisely rejected. 1 

The provisions of the American bills of rights on the 
liberty of the press have been quite generally considered to 
mean only that liberty of publication without the previous 
permission of the government, which was obtained by 
the abolition of the censorship, and not to change the 
common-law rules as to responsibility for libel. But Cooley 
considers it to include " not only liberty to publish, but 
complete immunity from legal censure and punishment for 
the publication so long as it is not harmful in character 
when tested by the common-law standards in force when the 
constitutional guarantees were established and in reference 
to which they have been adopted," 2 the phrase "being re- 
sponsible for the abuse of that liberty" meaning, therefore, 
subject to the common-law liability for defamation. 

1 At common law malice was conclusively inferred from the falsity and defama- 
tory nature of the charge, unless the defendant established privilege of communi- 
cation. Chase's Blackstone, p. 683. 

* Cooley, " Constitutional Limitations," p. 695. 



BILL OF RIGHTS 5 ! 

Section jV: Of the concrete rights to which the colonists 
by reason of their English descent laid claim, no longer as 
English subjects, however, but as individuals in a state, one 
of the most precious and essential was the right of trial by 
jury. This ancient bulwark of individual liberty whose 
origin, according to Blackstone, is to be sought as far back 
as the Saxon colonies, though not firmly established until 
the abolition of the Saxon trials by ordeal, and the Norman 
trial by battle, was first formally declared by Magna Charta 
of King John in 1215 in the king's solemn agreement that 
no freeman should be hurt in either his person or property, 
" unless by the legal judgment of his peers or the law of 
the land." The chief grievance in the Petition of Right of 
1628 was the violation of this provision, and among the 
oppressions of King George III enumerated in the Declara- 
tion of Independence was that of depriving the colonists, in 
many cases, of the benefits of trial by jury. It is no wonder, 
therefore, that every one of the constitutions of the revolu- 
tionary period contained express guarantees of jury trial, 
a precedent of constitutional practice which has persisted 
down to the latest constitutions, at least as regards criminal 
prosecutions for major offenses. 2 ' Jury trial was also ex- 
pressly protected in the Northwest Ordinance of 1787. 

The Illinois constitution of 1818 contained the simple pro- 
vision that the right of trial by jury should remain inviolate, 
but in the constitution of 1848 there was added the stipula- 

1 " The right of trial bv jury, as heretofore enjoyed, shall remain inviolate, but 
the trial of civil cases before justices of the peace, by a jury of less than twelve 
men may be authorized by law." Constitution of Illinois, 1870, Art. ii, Sec. 5. 

2 It is somewhat remarkable that in spite of the reverence of the English for 
the jury trial, and the great emphasis placed upon it by Blackstone and others, 
who considered it a right of viial importance, firmly established as a constitu'ional 
principle of English jurisprudence by the Great Charter, the United States Supreme 
Court should have declared that it is not part of " due process " as guaranteed by 
Amendment XIV of the Federal Constitution. Walker v. Sauvinet, 92 U. S., 90. 



52 THE CONSTITUTION OF ILLINOIS 

tion that it should extend to all cases at law, without regard 
to the amount in controversy, a provision not found in any 
other state constitutions, in a number of which, indeed, there 
were mentioned express exceptions to the general require- 
ment of jury trial. 

The present constitution, though declaring that the right 
of trial by jury as heretofore enjoyed, should remain inviolate, 
adds that the trial of civil cases before justices of the peace 
by a jury of less than twelve men might be authorized by 
law, which is a direct reversal of the provision in the consti- 
tution of 1848, and had previously been embodied in the 
proposed constitution of 1862. This proviso might, it seems, 
be regarded as one manifestation of a growing conviction, 
that the sacred and time-honored trial by jury, however 
worthy of esteem and respect by reason of its important role 
in the history of individual liberty in the past, is not alto- 
gether above criticism, and that whether by reason of changed 
external conditions, or because of the manner in which it 
has come to be administered, the system of trial by jury 
demands substantial revision to keep it from becoming more 
and more a clog on the wheels of justice. Considerable evi- 
dence of this feeling was found in various motions relating 
to jury trial introduced in this convention of 1869; x one of 
which proposed to add that a concurrence of three-fourths 
of a jury should in all cases constitute a verdict. Several 
other less radical modifications were offered, but one proposal 
went so far as to authorize juries to return a verdict of " not 
proven," after which the defendant might again be indicted 
for the same offence upon additional evidence being dis- 
covered. 

The guarantee of jury trial " as heretofore enjoyed," means 
not as enjoyed in 1869 by statute, but as enjoyed by the 

1 Debates of the Convention of 1869, pp. 1567, 1568. 



BILL OF RIGHTS 



53 



common law of England. This means that in case of a per- 
son charged with felony, " a jury of twelve men must be im- 
panelled ; the jury must be indifferent between the prisoner 
and the people ; they must be summoned from the vicinage 
or body of the country in which the crime was alleged to 
have been committed ; they must unanimously concur in 
the verdict, and the court cannot interfere to coerce them to 
agree upon a verdict against their convictions." x This right 
to trial by jury cannot be waived in case of felony except by 
a plea of guilty, 2 but in cas*es of misdemeanor the defendant 
may put himself upon the court for trial. 3 This guarantee 
extending only to cases in which jury trial was required at 
common law does not extend to cases of contempt proceed- 
ings, equity proceedings, statutory proceedings not known 
to the common law, eminent domain proceedings, etc., in 
all of which the common-law procedure was not applied. 4 

Section 6. 5 At common law the citizen was protected 
against seizure of person or property by very strict rules 
regarding the issuing of warrants, and immunity in his home 
against unreasonable searches and seizures was embodied in 
the maxim that " every man's house is his castle." The 
desire of the colonists to protect these rights by constitu- 
tional provisions is in part traceable to the abuse of execu- 
tive authority in England in violating these rights in order 

1 George v. People, 167 Illinois, 447 (1897). 

2 Morgan v. People, 136 Illinois, 161 (1891). 

3 Darst v. People, 51 Illinois, 286 (1869). 

4 184 Illinois, 475; 1 73 Illinois, 144; 103 Illinois, 367; 23 Illinois, 202. 

5 " The right of the people to be secure in their persons, houses, papers and 
effects against unreasonable searches and seizures shall not be violated; and no 
warrant shall issue without probable cause, supported by affidavit, particularly de- 
scribing the place to be searched and the persons or things to be seized." Con- 
stitution of Illinois, 1870, Art. ii, Sec. 6. 



54 THE CONSTITUTION OF ILLINOIS 

to obtain evidence of political offences, which practice was 
finally overthrown in 1765 by Lord Camden. 1 

In the colonies themselves, moreover, the practice of 
issuing writs of assistance to the revenue officers, authorizing 
them to search suspected places at their discretion, had al- 
ready caused great dissatisfaction ten years before this date, 
and had been denounced by Otis as " the worst instrument 
of arbitrary power, the most destructive of English liberty 
and the fundamental principles of law that ever was found in 
an English law book." 2 This prohibition of general warrants 
has been characterized as the only constitutional principle 
to be first established in America and later adopted in 
England. 3 

The Virginia Bill of Rights of 1776 had contained an 
express prohibition on general warrants of search and seizure 
which was incorporated in the constitution of Illinois, 1818, 
following the declaration that the people should be secure in 
their persons, houses, papers and possessions from unreason- 
able searches and seizures. Almost all of the other consti- 
tutions in 1818 contained similar provisions, and this section 
in the Illinois constitution of 1818 was retained without 
change in the constitution of 1848, at which time all but 
four of the twenty-eight other constitutions embodied similar 
provisions. 

There was no alteration of this section in the constitution 
of 1862, but the convention of 1869 changed the phraseology 
somewhat by adopting almost verbatim the form of the fourth 
amendment to the federal constitution. At the time of fram- 
ing the present Illinois constitution there was one state con- 
stitution only which did not contain a similar provision, viz., 
New York, 1846, which still continued under the constitu- 

1 Cooley, " Constitutional Limitations," pp. 424 ff. 2 Ibid. 

3 Stimson, " Federal and State Constitutions of the United States," p. 149, n. 10. 



BILL OF RIGHTS 55 

tion in force in 1848, when the prior Illinois constitution 
was adopted. 

The purpose of this constitutional prohibition was to 
establish the common-law rule as to searches and seizures, 
which had always been extremely jealous of the right of the 
individual to immunity from such interference with his per- 
son and property. Unreasonable searches and seizures are 
those without warrant properly obtained in cases where the 
common law required them. But arrests without warrant 
are not abridged by the constitution where such arrests 
could be made at common law before its adoption. 1 Prob- 
able cause must be shown by the production of evidence 
satisfactory to the court of such facts as to convince the 
magistrate that the suspicion is well founded, 2 and to justify 
the issuing of a warrant the affidavit must state either that 
the person therein described committed the offence or that 
the person making the complaint has just and reasonable 
grounds to suspect, or does in fact suspect, that he is guilty 
of the offence. 3 



Section 7* The provision that all persons shall be bailable 
by sufficient sureties except for capital offences where the 
proof is evident or the presumption great represents in effect 
the common-law rule of England as to bail. 5 Since by the 
concept of the common law every man was regarded innocent 

1 North v. People, 139 Illinois, 81 (1891). 
3 White v. Wagar, 185 Illinois, 195 (1900). 

3 Housh v. People, 75 Illinois, 487 (1874). 

4 " All persons shall be bailable by sufficient sureties, except for capital offenses, 
where the proof is evident or the presumption great; and the privilege of ihe writ 
of habeas corpus shall not be suspended, unless when in cases of rebellion or in- 
vasion the public safety may require it." Constitution of Illinois, 1870, Art. ii, 
Sec. 7. 

5 Chase's Blackstone, p. 1001. 



56 THE CONSTITUTION OF ILLINOIS 

until proved guilty, it followed also that every man was to 
be treated with all possible leniency even after arrest for 
crimes, and that confinement in jail should not be resorted 
to if the appearance of the accused for trial could be assured 
in some other way. Hence at common law every man was 
entitled to be released on bail before conviction upon suffi- 
cient sureties, except for capital offences, on charges based 
on more than a mere suspicion, when indeed the public 
welfare demanded the highest surety, viz., the custody of the 
accused himself. 

Though the first American Bill of Rights contained no 
express guarantee of the right to bail, it was impliedly guar- 
anteed in the prohibition against requiring excessive bail, 
which had been forbidden in England by Statute I W. & 
M. 2, Ch. i, and in the Northwest Ordinance it had been 
declared that all persons shall be bailable unless for capital 
offences where the proof is evident or the presumption 
great. 

The first Illinois constitution guaranteed the right to bail 
in the terms which have been retained in all three of the 
later constitutions. 1 About one-half of the constitutions 
then in force contained similar express guarantees of the 
right to bail and most of the others impliedly guaranteed it 
by such provisions as the ones adopted in the Virginia Bill 
of Rights. 

Closely connected with the guarantee of bail is the guar- 
antee of the writ of habeas corpus, which was another com- 
mon-law right of English subjects and was re-affirmed in 
the Habeas Corpus Act of 1679.* This writ which secured 
to the individual a hearing as to the legality of his imprison- 
ment and which was, and is, characteristic of the English 

1 Illinois is the only state that has no prohibition on excessive bail. Stimson, 
supra, p. 105. 

2 Stubbs, " Select Charters," p. 517. 



BILL OF RIGHTS 



57 



law alone, 1 was deemed one of the most important of individual 
rights, and the Habeas Corpus Act was regarded as the 
" second Magna Charta and stable bulwark of liberties." 

In England the privilege of this writ could legally be sus- 
pended in cases of evident public necessity, but only upon 
authority given by Parliament to the Crown. The possibility 
of such an exigency was provided for in the first Illinois 
constitution by the provision qualifying the prohibition of 
suspending the writ, viz., " unless when in cases of rebellion 
or invasion the public safety may require it." 

In the Northwest Ordinance of 1787 the inhabitants of the 
Territory had been declared to be always entitled to the 
benefits of the writ of habeas corpus, and provisions were 
found in 1818 in over half of the other state constitutions 
similar to the one in the first Illinois constitution, which was 
retained without change in the subsequent constitutions of 
the state. 

Section 8* The protection against criminal prosecution 
except after indictment by grand jury, that is, formal accusa- 
tion by a body of from twelve to twenty-three sworn men of 
the country, extends even farther back in English criminal 
procedure than does the right to trial by petit jury, and has 
been traced to the Hundred Courts of Aethelred. 3 At com- 

1 " There is on the continent nothing corresponding to the constitutional right 
of any individual when arrested by an officer of the government to demand in- 
stant information of the cause of his arrest and to be set at large unless indicted 
by a grand jury for a crime not bailable or for which the person accused is un- 
able to give satisfactory bail." Stimson, " Federal and State Constitutions," p. 18. 

2 " No person shall be held to answer for a criminal offence, unless on indict- 
ment of a grand jury except in cases in which the punishment is by tine or im- 
prisonment otherwise than in the penitentiary, in cases of impeachment and in 
cases arising in the army or navy or in the militia when in actual service in time 
of war or public danger : Provided, that the grand jury may be abolished in all 
cases." Constitution of Illinois, 1870, Art. ii, Sec. 8. 

8 Stimson, " Federal and State Constitutions," p. 169, note. 



58 THE CONSTITUTION OF ILLINOIS 

mon law indictments or presentments by grand jury were in 
general required in all cases, though for misdemeanors the 
method of accusation by information was used as well, espec- 
ially in cases of misdemeanors that tended to disturb or en- 
danger the government. But this latter species of proceeding 
was looked upon with great disfavor in England because of its 
abuse in the times preceding the revolution, and was there 
later regulated by statute. 1 In America also this accusation 
by information was very unpopular, though only one of the 
revolutionary constitutions, viz., North Carolina, 1776, con- 
tained any other guarantee of indictment by grand jury than 
that contained in the provision establishing the English com- 
mon law as the law of the states. 

When, however, the first constitution of Illinois came to 
be framed, the federal constitution had expressly guaranteed 
the right to indictment, and seven other states had followed 
this precedent in their constitutions. The Illinois constitu- 
tion of 1818 provided that no indictable offence should be 
proceeded against criminally by information, a principle 
that went beyond the common-law rule which recognized 
some kinds of offences that could be proceeded against by 
either indictment or information. The exceptions recog- 
nized in the constitution of 1818 were the same as existed at 
common law, namely, trial by court martial, and by impeach- 
ment, to which proceedings the requirement of grand jury 
indictment never applied. 

In the constitution of 1848 indictment or presentment of a 
grand jury was required for all offences punished with im- 
prisonment or death, or fine above one hundred dollars, 
except in cases of impeachment or cases arising in the army 
or navy or in the militia when in actual service in time of 
war or public danger. Similar provisions existed at that 

1 Chase's Blackstone, ch. XXI. 



BILL OF RIGHTS 



59 



time in all but eight of the state constitutions, and of these 
eight, six were still the early constitutions adopted before 
the first Illinois constitution. Of the two others, one was 
that of the civil law state of Louisiana, and the other was 
that of Virginia, which had retained its original Bill of 
Rights of 17/6 in its second constitution. 

It appears, therefore, that the indictment by grand jury 
came to have growing importance in the American bills of 
rights in the thirty years between the framing of the first 
and second Illinois constitutions, and in the proposed con- 
stitution of Illinois of 1862 there was embodied the same 
guarantee. 

But in the Illinois convention of 1869 there was evidenced 
considerable opposition to the grand jury system. Some 
motions suggested a reduction in the total number of grand 
jurymen, or in the number required for a finding, and some 
advocated the abolition of the grand jury with power in the 
legislature to re-establish it, while others, more extreme, 
went to the length of demanding complete abolition. 1 Sev- 
eral speeches in strong denunciation of the evils of the grand 
jury system were delivered while others as warmly defended 
it. 2 This agitation terminated finally in the proviso now 
found in section 8, to the effect that the grand jury may 
be abolished by law in all cases, leaving the advisability of 
abolishing this ancient system to be determined by the legis- 
lature, which that body in the forty years since the authority 
was conferred upon it has not seen fit to do. 3 It is interest- 
ing to note that of the twenty-four state constitutions which 
in 1870 expressly guaranteed indictment by grand jury, 

1 Debates of the Convention of 1869, p. 174. 

2 Ibid., pp. 1434-1438, 1440-1442. 

3 Recent evidence of continued opposition to the grand jury system is furnished 
by the introduction into the last two sessions of the Illinois legislature of bills to 
abolish the system. 



60 THE CONSTITUTION OF ILLINOIS 

Illinois was the only one that permitted it to be abolished 
by the legislature, although Indiana, which, however, had 
not expressly protected it, had in 1851 adopted a similar 
provision. 1 

In Illinois, under the present constitution, what was prac- 
tically the common-law rule as to grand jury indictment is 
confirmed. Indictment is essential to the legal prosecution 
of persons charged with crime punishable by penitentiary 
imprisonment, 2 and where conviction would result in dis- 
qualification to hold public office, 3 but not to hold persons 
to answer for misdemeanors. 4 The proviso at the end of 
the section virtually authorizes the legislature to change a 
constitutional provision, but that its effect is not, as might at 
first appear to be the case, to nullify the whole section 
would seem to be shown by the reluctance evidenced by the 
subsequent legislatures of Illinois to alter a system which 
the constitution of the state evidently wished to favor. 



Section p. 5 The rights of the accused in criminal prosecu- 
tions guaranteed by this section were for the most part rights 
to which English subjects were entitled by the common law and 
which were considered essential attributes of personal liberty 
and security. So at common law an indictment could not be 
tried unless the defendant personally appeared. So also the 

1 Constitution of Indiana, 1851, Art. vii, sec. 17. 

'* Paulsen v. People, 195 Illinois, 507 (1902). 

3 People v. Kipley, 171 Illinois, 44 (1897). 

*Brewster v. People, 183 Illinois, 143 (1899). 

5 " In all criminal prosecutions the accused shall have the right to appear and 
defend in person and by counsel; to demand the nature and cause of the accusa- 
tion and to have a copy thereof; to meet the witnesses face to face, and to have 
process to compel the attendance of witnesses in his behalf and a speedy public 
trial by an impartial jury of the county or district in which the offense is alleged 
to have been commuted." Constitution of Illinois, 1870, Art. ii, Sec. 9. 



BILL OF RIGHTS 5 1 

defendant was entitled to the assistance of counsel as to the 
matters of law arising on the trial. As to other matters the 
defendant was not entitled to counsel, on the principle that 
the judge should be counsel for the prisoner and see that 
the proceedings against him were legal and strictly regular. 
But Blackstone rightly speaks of this latter rule as " not at 
all of a piece with the rest of the humane treatment of 
prisoners by the English law " and states that the judges 
never scrupled to allow a prisoner the assistance of counsel 
to instruct him what questions to ask or even to ask questions 
for him, with respect to matters of fact. 1 

When the prisoner was arraigned, the indictment, which 
contained in great detail all matters bearing on the accusa- 
tion, was read to him that he might fully understand his 
charge, which was all that was necessary at a time when the 
general inability to read, especially among the criminal 
classes, made a requirement of a copy for the defendant 
superfluous. 

The right to meet the witnesses for the prosecution and to 
question them was also a common-law right, though the 
defendant had no right by the early rule to introduce wit- 
nesses in his own behalf in capital cases. 2 But by Statute 
i Ann. 2, ch. 9, it was declared that in all cases of treason 
and felony all witnesses for the prisoner should be examined 
upon oath in like manner as the witnesses against him. 
Finally the right to a trial by a jury of the county where the 
fact was committed was also recognized by the common law 
and insisted upon as one of the greatest protections for the 
accused, based on the early theory that the jurors were wit- 
nesses, and themselves cognizant of the commission or non- 
commission in their midst of the act charged. 

The Virginia Bill of Rights enumerated substantially all 

1 Chase's Blackstone, p. 1025. J Ibid., p. 1028. 



62 THE CONSTITUTION OF ILLINOIS 

of these rights of the accused, and all but three ' of the con- 
stitutions in force when Illinois became a state contained 
express provisions of a similar nature. The first constitution 
of Illinois declared the rights of the accused in practically 
the same terms found in the present constitution, and no 
material change was made in the second constitution. The 
right of the defendant to compel the attendance of witnesses 
in his favor had been protected in two-thirds of the constitu- 
tions then in force. The present constitution contains the 
additional provision that the accused have the right to a 
copy of the accusation, a right guaranteed in nine other 
constitutions in force in 1870. In the convention of 1869 
it was suggested to guarantee to the defendant the right to 
have his counsel close the argument to the jury, and also to 
make non-freeholders incompetent as jurors, if objected to 
on that ground, but otherwise no changes in the provisions 
of the former constitutions were proposed. 

The provisions of the present constitution, like the re- 
quirements of the common law in this respect, refer only to 
nisi prius- trials, that is, not to appeals or other proceedings 
of review in higher courts. 2 The presence of the accused, 
though essential in cases of felony, is not necessary at the trial 
of mere misdemeanors, 3 and may in this latter case be waived 
by him. 

The right to appear by counsel includes the right to have 
one's counsel allowed a reasonable time for argument. 4 

The purpose of requiring a copy of the accusation is to 
secure such specific designation of the offence charged as to 
enable the defendant to prepare fully for his defence and to 

1 Georgia 1798, New Jersey 1776, South Carolina 1776. 
2 Fielden v. People, 128 Illinois, 595 (1889). 
3 Bloomington v. Ileiland, 67 Illinois, 278 (1873). 
* White v. People, 90 Illinois, 117 (1878). 



BILL OF RIGHTS 63 

plead the judgment in bar of a subsequent prosecution for 
the same offence. 1 

The right to meet the witnesses face to face excludes all 
evidence by deposition in criminal trials, with the single 
exception of dying declarations. 2 

The right to a speedy trial guarantees against arbitrary 
and oppressive delays only, not such as are due to conges- 
tion of cases on the docket, 3 and the requirement of a public 
trial is not violated when the doors of the court room are 
closed for a temporary purpose during the trial of a criminal 
case if not for the purpose of excluding anyone connected 
with the trial. 4 The guarantee of an impartial jury means a 
jury impartial in the sense in which that term was under- 
stood at common law, 5 that is, chosen under the safeguards 
with which the common law surrounded the choice of jurors. 6 
Finally, the requirement of a jury of the county or district 
may be waived by the defendant by asking a change of venue. 7 

Section io. 8 In the same category with the rights of the 
accused protected in the preceding section is the freedom 
from self-incrimination and from double jeopardy, which was 
also carefully protected by the rules of the common law. 
Firstly, it was an established rule of evidence that confessions 
were not admissible as evidence unless they were freely 

1 West v. People, 137 Illinois, 189 (1891). 
2 Starkey v. People, 17 Illinois, 17 (1855). 
3 Weyrich v. People, 89 Illinois, 90 (1878). 
* Stone v. People, 3 Illinois, 326 (1840). 
5 Coughlin v. People, 144 Illinois, 140 (1893). 

6 See Chase's Blackstone, ch. xxv. 

7 Weyrich v. People, 89 Illinois, 94 (1878). 

8 " No person shall be compelled in any criminal case to give evidence against 
himself, or be twice put in jeopardy for the same offense." Constitution of 
Illinois , Art. ii, Sec. io. 



64 THE CONSTITUTION OF ILLINOIS 

given without fear of harm or hope of favor, and a confession 
obtained by compulsion, though used when the trial by 
ordeal and other inquisitorial trials were still in force, was 
not admissible in the later common-law prosecution of 
crimes. Says Cooley, 1 " A peculiar excellence of the com- 
mon law system of trial consists in the fact that the accused 
is never compelled to give evidence against himself." 

So also of the protection against double jeopardy, Black- 
stone says * it is a " universal maxim of the common law of 
England that no man is to be brought into jeopardy of his 
life more than once for the same offence," and in every case 
the defendant might plead former jeopardy in bar of the 
accusation. 

The guarantee against being compelled to give evidence 
against oneself was put into the Virginia Bill of Rights and 
into all but four of the other constitutions in force prior to 
1818, including the federal constitution. But the protection 
against double jeopardy was found in only one-half .of those 
same constitutions, not having been inserted into the proto- 
type of the early bills of rights. In the first Illinois consti- 
tion both of these provisions were embodied and they have 
remained in the same terms down to the present constitu- 
tion, being adopted by the convention of 1869 from the 
former constitutions without comment. Both guarantees 
existed in almost all the other constitutions in force in 1870. 

The constitutional protection against self-incrimination 
means that neither a witness nor the defendant in a criminal 
case need answer any question the answer to which will ex- 
pose him to any penalty, fine, forfeiture, or punishment, or 
which will have a tendency to accuse him of any crime or 
misdemeanor, or to expose him to any penalty or forfeiture, 

1 " Constitutional Limitations," ch. x, 442. 
2 Chase's Blackstone, p. 1019. 



BILL OF RIGHTS 65 

or which would be a link in a chain of evidence to convict 
him of a criminal offense. 1 But this privilege is personal to 
the witness and he may waive it without consent of the de- 
fendant. 2 Furthermore, this constitutional privilege cannot 
be claimed if by reason of an immunity statute the evidence 
obtained under compulsion can in no way be used as a basis 
in aid of a prosecution which might result in fine, imprison- 
ment, penalty, or forfeitures 

The protection against double jeopardy means that no 
person shall twice be put in peril of conviction for the same 
act and offense, 4 and whether two indictments are for the 
same offense must be determined by an inspection and com- 
parison of the indictments. 5 If the facts charged in the 
second indictment would have sustained a conviction under 
the first indictment, the plea of former jeopardy is good, 6 
but where the facts charged in the second indictment would 
not, if proved, have warranted conviction under the first, 
the plea of former jeopardy cannot be maintained. 7 

The verdict itself forms the bar to subsequent prosecution 
for the same offense though there is no judgment on it, 8 but 
where judgment of conviction is arrested or reversed at the 
instance of the accused he will not in legal contemplation 
have been in jeopardy, but may again be put on trial for the 

1 Lamson v. Boyden, 160 Illinois, 613 (1896). 

2 Samuel v. People, 164 Illinois, 379 (1897). 

3 People v. Butler St. Foundry, 201 Illinois, 236 (1903). The immunity clause 
in the act here in question was as follows: "Provided that no corporation etc. 
shall be subject to any criminal prosecution by reason of anything truth- 
fully disclosed by the affidavit required by this act or truthfully disclosed in any 
estimony elicited in the execution thereof." 201 Illinois, p. 243. 

*Freeland v. People, 16 Illinois, 380 (1855). 

5 Durham v. People, 5 Illinois, 172 (1843). * Ibid. 

7 Guedel v. People, 43 Illinois, 226 (1867). 

8 Hankins v. People, 106 Illinois, 628 (1883). 



66 THE CONSTITUTION OF ILLINOIS 

same offense. 1 So also if the jury is discharged in case of 
disagreement, the former jeopardy will not be available as a 
plea to a new trial. 2 

When the same act constitutes several offenses, trial and 
punishment for one will be no bar to a prosecution for the 
others growing out of the same transaction. 3 So for instance, 
where one single act violates a local ordinance, a state law, 
and a law of the United States, there are three distinct offenses 
which are punishable as such. Similarly in case of an act 
which is both a contempt of court and an indictable crime, 
the indictment and the proceeding for contempt are entirely 
distinct and neither will be a bar to the other. 4 



Section n. 5 Of the three provisions in the next section, 
the first one, requiring that all penalties shall be propor- 
tioned to the nature of the offence, can be found in Eng- 
land as early as Magna Charta, where it is declared that 
" a freeman shall not be amerced for a small offence, but 
according to the degree of the fault and for a great crime in 
proportion to the heinousness of it." 6 The spirit of this 
prohibition was expressed in the early American constitu- 
tions either by a provision like that in the English Bill of 
Rights against excessive fines and cruel and unusual pun- 
ishments, 7 found in the Virginia Bill of Rights and in the 

1 Gerhard v. People, 4 Illinois, 362 (1842). 

2 Dryer v. People, 188 Illinois, 40 (1900). 
8 Trausch v. Cook County, 147 Illinois, 534 (1893). 
* Beattie v. People, 33 Illinois Appeals, 651 (1889). 

6 " All penalties shall be proportioned to the nature of the offense; and no con- 
viction shall work corruption of blood or forfeiture of estate; nor shall any per- 
son be transpoited out of the state for any offense committed within the same." 
Constitution of Illinois, 1870, Art. ii, Sec. II. 

6 Magna Charta, Cap. 20, Stubbs "Select Charters," p. 299. 

7 This prohibition had already been anticipated in the Massachusetts Body of 
Liberties, clauses 43, 45, and 46. Stimson, " Federal and State Constitutions," 
p. 22. 



BILL OF RIGHTS 



6 7 



federal constitution, or by a requirement that all penalties 
shall be proportioned to the nature of the offence, as in the 
Illinois constitution of 1818. In one or the other of these 
two forms this early provision of Magna Charter existed in 
over half the constitutions in force in 1818, and Article V 
of the Northwest Ordinance had provided that " all fines 
shall be moderate and no cruel or unusual punishments shall 
be inflicted." 

The second provision, to the effect that no conviction 
should work corruption of blood or forfeiture of estate, is 
directed against the common-law rule that descent could not 
be traced through a person convicted of treason or felony, 
and that his real and personal property were, therefore, 
forfeited ; the former to the lord of the fee, the latter to the 
king. These incidents of treason and felony prevailed from 
the earliest time, and had their source in the feudal theory 
that property, especially realty, was held of a superior lord 
upon the condition of discharging duties attaching to it, and 
was forfeited by breach of these conditions. 1 This prohib- 
ition was not found in the earliest Bill of Rights nor in the 
federal^constitution, and when the first Illinois constitution was 
framed, only three other constitutions contained the prohibi- 
tion exactly, though four others contained it in modified 
form. 

The last provision in this section forbidding deportation 
for crime committed within the state was occasioned by 
the English statutes just prior to the American Revolution, 
making deportation a substantive punishment. The pun- 
ishment was unknown at common law, and in 1679 the 
Habeas Corpus Act had forbidden the deportation of Eng- 
lish subjects as prisoners out of the kingdom. 2 It was in- 
troduced as a condition of pardon in case of crimes excluded 

1 Stephen, " History of the Criminal Law of England," vol. i, p. 487. 

2 Stubbs, " Select Charters," p. 52. 



68 THE CONSTITUTION OF ILLINOIS 

from clergy, 1 and by reason of statutes passed in the eigh- 
teenth century, had become part of the law of the colonies 
upon their separation from England. This provision was, 
however, very rare in the early constitutions and in 1818 
only three of the eighteen then existing state constitutions 
contained such a prohibition. 2 

All three of the above provisions were adopted in the 
constitution of 1848, though the committee on the bill of 
rights omitted all mention of the first two in its report. In 
the constitution of 1870 these same stipulations were re- 
tained without change, though it was suggested among 
other changes to add that the death penalty should never be 
inflicted.3 

The question whether the imposition in a particular in- 
stance of a punishment, though authorized by the legislature, 
violates the requirement that penalties should be propor- 
tioned to the nature of the offense is, of course, left to the 
discretion of the court. But it is a discretion to be judicially 
exercised and there may be cases in which a punishment, 
though within the limits fixed by a statute, is so clearly ex- 
cessive as to be in violation of this constitutional require- 
ment. 4 

But whether the penalty imposed by statute on a crime 
is excessive per se, is a matter primarily for legislative dis- 
cretion. When the legislature has authorized a designated 
punishment for a specified crime, the court will not hold it 
invalid, unless it is a cruel or degrading punishment not 
known to the common law, or a degrading punishment which 
had become obsolete in the state prior to the adoption of its 

1 Stephen, supra, pp. 480, 487. 
3 Mississippi 1817, Ohio 1802, Vermont 1793. 
'Debates of the Convention of 1869, p. 1573. 
*Cooley, "Constitutional Limitations," p. 471. 



BILL OF RIGHTS 69 

constitution, or is so wholly disproportioned to the offence as 
to shock the moral sense of the commmunity. 1 

An act imposing the forfeiture of all franchises of a cor- 
poration as a penalty for any violation of the prohibition of 
the act on discriminating freight rates was held to contravene 
this provision of the constitution. 2 But providing an in- 
creased penalty for a second offence is not imposing a dis- 
proportionate penalty, for repetition of the offence aggravates 
the guilt.3 

Section 12* Imprisonment for debt was one of the great 
defects of the common law from the earliest times until well 
into the nineteenth century in England, and existed in most 
of the American colonies for many years, though somewhat 
mitigated by insolvent laws. But the absurdity and injustice 
of imprisoning honest debtors was pretty generally realized 
by 1776, when die first American constitutions were being 
framed, and seven of the state constitutions in force when 
Illinois became a state embodied a prohibition against im- 
prisonment for debt, in the absence of fraud, as one of the 
guarantees of individual liberty. 5 The constitution of 1848 
and the proposed constitution of 1862 retained this provision 
from the earliest constitution, and no change was made in 
the section when adopted into the present Illinois constitu- 
tion. 

1 People v. Illinois State Reformatory, 148 Illinois, 413 (1894). 
2 C. & A. R. R. Co. v. People, 67 Illinois, 11 (1873). 

3 Kelly v. People, 115 Illinois, 583 (1886). 

4 "No person shall be imprisoned for debt unless upon refusal to deliver up his 
estate for the benefit of his creditors in such manner as shall be prescribed by law; 
or in cases where there is strong presumption of fraud." Constitution of 'Illinois* 
1870, Art. ii, Sec. 12. 

5 This principle had already been embodied in the Massachusetts Body of 
Liberties, 1641, in the provision that no man should be imprisoned for debt if the 
law could find competent means of satisfaction otherwise from his estate. Stim- 
son, " Federal and State Constitutions," p. 23. 



70 THE CONSTITUTION OF ILLINOIS 

This constitutional guarantee is confined to actions upon 
contracts express or implied, and does not apply to lia- 
bilities for torts x nor to fines or penalties arising from a vio- 
lation of the penal laws of the state, 2 and a court cannot 
commit for contempt in not obeying a decree to pay money 
unless the refusal is wilful and not caused by financial in- 
ability.3 

Section 7J. 4 The right of eminent domain, that is, the 
power of the state to appropriate to its own use or to that of 
its agents private property of its citizens needed for public 
purposes, is inherent in sovereignty, and is as old as govern- 
ment itself. In early times, moreover, the duty of the state 
to compensate the individual for property so taken was not 
recognized, and even in England private property was fre- 
quently taken for the use of the crown without compensa- 
tion. 5 But Blackstone in discussing the limitations on the 
absolute right of private property declares that the legisla- 
ture alone can act in the exercise of the power of eminent 
domain, and that only by giving the individual so deprived 
a full indemnification and equivalent for the injury thereby 
sustained. 6 Eminent domain differs from taxation in that in 
the former case the citizen is compelled to surrender to the 
public something beyond his due proportion for the public 

1 Rich v. People, 66 Illinois, 513 (1873). 

2 Kennedy v. People, 122 Illinois, 649 (1887). 

3 Blake v. People, 80 Illinois, n (1875). 

4 " Private property shall not be taken or damaged for public use without just 
compensation. Such compensation, when not made by the State, shall be ascer- 
tained by a jury, as shall be prescribed by law. The fee of land taken for rail- 
road tracks, without consent of the owners thereof, shall remain in such owners 
subject to the use for which it is taken." Constitution of Illinois, 1870, Art. ii, 
Sec. 13. 

5 White, " Constitution of Pennsylvania," ch. xxvi. 

6 Chase's Blackstone, p. 79. 



BILL OF RIGHTS 7! 

benefit. It is a primary requisite, therefore, in the appro- 
priation of lands for public purposes that compensation shall 
be made therefor. 1 

As this power of eminent domain does not depend upon 
constitutions but exists independently of them, inherent in 
sovereignty, no affirmative declaration of the power was 
requisite in the framing of our American constitutions. But 
to guard against abuse of the power by the sovereign through 
its agents it was felt necessary to embody some limitations 
thereof in the fundamental law of the state. The Virginia 
Bill of Rights did not contain such a provision nor did any 
of the other constitutions of that year which were modeled 
after it. But the Northwest Ordinance had provided for 
compensation, and when Illinois in 1818 first framed a con- 
stitution, one-half of the state constitutions then in force 
contained some limitation of the power of eminent domain. 

In the first Illinois constitution it was provided that no 
man's property should be taken or applied to public use 
without the consent of his representatives in the general 
assembly, nor without just compensation being made to him, 
which x still showed the distrust of executive usurpation of 
power so strongly experienced by the American colonists in 
1776. In the first draft of the Illinois constitution submitted 
to the convention it was provided that compensation should 
be previously made, which condition had not formerly been 
considered essential to the validity of the exercise of the 
power, at least not when exercised by the state itself. 2 But 
this suggestion was not at that time adopted. 

No change was made in the provision regarding eminent 
domain in the constitution of 1848, but important changes 
were made in the present constitution of 1870. In the first 
place, while it had been the universal rule that the com- 

1 Cooley, " Constitutional Limitations," p. 812. l Ibid., p. 813. 



72 THE CONSTITUTION OF ILLINOIS 

pensation awarded was to be measured by the value of the 
property taken and the direct injury to the owner from the 
loss, so that any proper exercise of the powers of govern- 
ment which did not directly encroach upon the property of 
an individual or disturb him in his possession or enjoyment 
would not entitle him to compensation, it was now provided 
for the first time in any state in the Union, that private 
property should not be taken or damaged for public use 
without just compensation. 

This important innovation was not adopted without con- 
siderable discussion and some opposition in the convention 
of 1869, mainly on the ground that by departing from the 
settled rules relating to eminent domain there was no cer- 
tainty as to where the courts might stop in the application 
of this new provision, resulting perhaps in making it impos- 
sible to carry out certain important public improvements be- 
cause of the extent of damages to be paid to private owners. 
But this eminently just and reasonable provision was retained 
and has been copied in a number of the state constitutions 
adopted since that time. 1 

Another important change introduced in the constitution 
of 1870 with respect to the right of eminent domain, was the 
provision as to the manner of ascertaining the compensation 
due. Under the former constitutions it was left with the 
legislature to fix the manner of determining such compensa- 
tion. What the tribunal shall be which is to assess the com- 
pensation must be determined either by the constitution or 
by the statute which provides for the appropriation, for the 
exercise of the right of eminent domain is not one where, as 
a matter of right, the party is entitled to trial by jury. 2 

But the proceeding being judicial in character, the party 
in interest is entitled to have an impartial tribunal and the 

1 Cooley, " Constitutional Limitations," p. 810. 2 Ibid., p. 817. 



BILL OF RIGHTS 73 

usual rights and privileges which attend judicial investiga- 
tions, and the convention of 1869 felt that jury trial was the 
best manner of securing such impartial investigation, in cases 
where the right was not being exercised by the state itself. 1 
It was first proposed to provide for an alternative body of 
three commissioners, appointed by a court of record, to 
ascertain the compensation, which was the method of assess- 
ing such compensation under the existing statutes. But 
this provision was stricken out of the committee report by the 
convention, many members of which were in favor of pre- 
scribing even more minutely the process to be followed in 
assessing compensation by a jury. It was again variously 
suggested to require compensation to be first made, and fur- 
ther, several resolutions were introduced with a view to pro- 
hibiting the deduction of benefits from the compensation to be 
awarded. This latter proposition aroused much discussion, 
being regarded by some as essential to a just exercise of the 
power of eminent domain, and by others as itself most unjust 
and unreasonable. The general expression of sentiment 
was, however, distinctly in favor of such a limitation, and it 
was ir\ fact adopted by the convention, but upon re-refer- 
ment to the committee was finally omitted. 2 

Various other resolutions and motions relative to the right 
of eminent domain were introduced, there being more dis- 
cussion of this section of the bill of rights than of any other, 
principally due to what were considered the abuses of this 
right by the public- service corporations, especially the rail- 
roads which had of late been making such large use of the 
power. But the convention as a whole realized the wisdom 
of leaving the matter of detailed regulation of the power to 

1 This provision was taken from the Constitution of New York 1846, and was 
found elsewhere only in the constitutions of Iowa 1857, Michigan 1850, and Ohio 
1851. 

2 Debates of the Convention of 1869, pp. 1575 ff. 



74 THE CONSTITUTION OF ILLINOIS 

the legislature, and rejected the more radical suggestions, 
one of which went so far as to provide that no man should 
be deprived of his property in any case against his consent. 1 

The provision that the fee of land taken for railroad tracks 
without the consent of the owners thereof should remain in 
such owners, subject to the use for which it is taken was 
also unique in the constitution of Illinois. Its purpose was 
to prevent private property from being taken and retained 
by railroad corporations and turned to other uses when no 
longer needed for the purpose for which it was taken. 

It appears, therefore, from the debates of the convention 
that this whole question of the right of eminent domain and 
its manner of exercise was considered a question of funda- 
mental importance which had not been satisfactorily dealt 
with in the past, and which required further action, but the 
diversity of views as to the changes to be made resulted in 
a great deal less radical alteration in the wording of this im- 
portant section, than would have suited many members of 
the convention. 

Since the right of eminent domain exists in every govern- 
ment, independently of constitutional grant, on the ground 
of necessity, no legislative bargain in restraint of the com- 
plete, continuous, and repeated exercise of this right is valid 
or within the protection of the obligation of contracts in 
either the federal or state constitutions. 2 

Private property in this connection has been defined as 
that dominion or indefinite right of user and disposition 
which one may lawfully exercise over particular things or 
subjects generally, to the exclusion of others. 3 Every 
species of property which the public needs may require and 

1 Debates of the Convention of 1869, p. 429. 

2 Village of Hyde Park v. Cemetery Association, 119 Illinois, 141 (1886). 
3 1. C. R. R. Co. v. Commissioners of Highways, 161 Illinois, 244 (1896). 



BILL OF RIGHTS 75 

which government cannot lawfully appropriate under any 
other right is subject to be seized and appropriated under 
the right of eminent domain, in fact legal and equitable 
rights of every description, except money or those rights 
in action which can only be available when made to produce 
money. 1 

Under the present constitution, as seen, not only the taking 
of private property but the damaging as well must be compen- 
sated for. Prior to the constitution of 1870, recovery could 
be had only for direct physical injury to property, as by 
overflowing it, depositing materials upon it, etc., and so in- 
terference with the ingress to or egress from property was 
not required to be compensated for. But under the new 
provision compensation is to be allowed in all cases, where 
but for some legislative enactment, an action would lie at 
common law, for tort to property. 2 

The question of what constitutes a public use, has fre- 
quently arisen in the courts, but no definite rule can be laid 
down. The necessity or expediency of putting private 
property to a certain use, is a question wholly for the legis- 
lature, though the question whether such use is public or 
private, will be reviewed by the courts. 3 The ordinary 
functions of government are, of course, clearly public uses, 
but even private undertakings may embody a public use, as 
in the case of so-called public service or public utility 
corporations. 4 

The construction of drains, ditches, and levees by land- 
owners for agricultural, sanitary, or mining purposes across 
the lands of others, especially authorized by constitutional 

1 Cooley, " Constitutional Limitations," pp. 756 ff. 

2 Rigney v. Chicago, 102 Illinois, 64 (1882). 

3 Dunham v. Village of Hyde Park, 75 Illinois, 371 (1874). 

4 Chicago R. I. and Pac. R. R. v. Joliet, 79 Illinois, 25 (1875). 



76 THE CONSTITUTION OF ILLINOIS 

provision, 1 is also subject to the conditions imposed on the 
exercise of the right of eminent domain. Sewerage and 
other works necessary for the abatement of public nuisances 
come within the meaning of a public use 2 whether constructed 
by public authorities or by private companies. 

" Just compensation " means compensation to such amount 
as is under all the circumstances a fair and full equivalent 
for the thing taken, 3 or a reimbursement for real, as distin- 
guished from merely speculative damages. 4 

The requirement of a jury in this section embraces all the 
provisions of section 5 and permits therefore a jury of six 
to be authorized in trials before justices of the peace. 5 So 
also the jury must be one in the selection of which the party 
in interest has had an opportunity to participate. 6 

In general, since the right of eminent domain, necessary 
and undisputed though it be, is, nevertheless, a compulsion 
on the individual to sell his property, involuntarily, it must 
not be abused, and in its exercise the limitations prescribed 
by the constitution should be strictly observed, and the 
statutes passed in pursuance thereof should be strictly com- 
plied with. 7 



Section 14* Ex post facto laws, that is, retroactive crim- 
inal laws were considered at common law also as cruel and 

1 Constitution of Illinois, 1870, Art. iv, Sec. 31. 

2 Jacksonville v. Lambert, 62 Illinois, 519 (1872). 

3 Phillips v. Town of Scales Mound, 195 Illinois, 353 (1902). 

4 R. R. Co. v. City of Pontiac, 169 Illinois, 155 (1897). 

5 McManus v. McDonough, 107 Illinois, 95 (1883). 

6 W. R. R. Co. v. Drainage District, 194 Illinois, 310 (1902). 

7 Ayer v. City of Chicago, 149 Illinois, 262 (1894). 

8 " No ex post facto law, or law impairing the obligation of contracts, or making 
any irrevocable grant of special privileges or immunities, shall be passed." Con- 
stitution of Illinois, 1870, Art. ii, Sec. 14. 



BILL OF RIGHTS 



77 



unjust. 1 The principle that all laws adversely affecting 
private rights should be made to commence in futuro was 
a fundamental principle of sound legislation in England 
and has been a basic doctrine of our American constitutional 
law from the very first. Retroactive laws, whether ex post 
facto laws or laws impairing the obligation of contracts, that 
is, whether criminal or civil, were ever contrary to the spirit 
of our institutions under which life, liberty, and property are 
most jealously safeguarded. The Virginia Bill of Rights, it 
is true, did not embody a prohibition on such laws, but the 
Northwest Ordinance had forbidden laws violating contract 
rights and the great majority of states had by 1818 adopted 
such provisions in their constitutions, besides the provisions 
on this point in the United States constitution. 

The federal constitution, it must be remembered, not only 
forbids Congress to pass ex post facto laws, but expressly 
forbids the states also to pass either ex post facto laws or 
laws impairing the obligation of contracts. The insertion of 
these provisions and the same was also true of the state 
guarantees of due process after the adoption of amendment 
XIV of the federal constitution into the first constitu- 
tion of Illinois could, therefore, be of effect only in broad- 
ening the protection which the interpretation of the federal 
provision by the United States courts might supply. That 
is, any state act which federal courts would consider con- 
trary to either of these prohibitions as contained in the fed- 
eral constitutions would be wholly bad, whether or not the 
state courts might consider it as not violating the identical 
provision in the state constitution. On the other hand, how- 
ever, a state act sustained by the federal courts as not con- 
trary to these prohibitions in the federal constitution might 
still be invalidated by the state courts as violating their in- 
terpretation of the same words in the state constitution. 

1 Chase's Blackstone, p. 10. 



78 THE CONSTITUTION OF ILLINOIS 

Both of these guarantees were, however, continued in the 
later constitution of Illinois, and adopted in the constitution 
of 1870 practically without discussion, being found at that 
time also in about two-thirds of the other state constitutions. 

The prohibition on making any irrevocable grant of special 
privileges or immunities was new in the present constitution 
of Illinois, but very little discussion of this provision took 
place on the floor of the convention, notwithstanding that it 
could be found in only two other constitutions of that time. 1 
The indiscriminate granting of valuable franchises, in cor- 
porate charters, made it necessary, under the ruling in the 
Dartmouth College case 2 that such charters are contracts, to 
protect the public against corrupt or indifferent legislative 
bodies, by providing in the fundamental law of the state that 
such grants could not be irrevocably made. 

In the convention of 1869 it was moved, with a view to 
remedying the mistakes of the past, as well as to providing 
protection in the future, that any amendment made to exist- 
ing charters of corporations should subject them to future 
legislation, that is, withdraw them from the protection of 
this provision, but this motion was not reported out by the 
committee to which it was referred. 

Ex post facto laws are defined in Illinois to be those by 
which, after an act indifferent in itself has been committed, 
the legislature declares it to have been a crime and makes it 
punishable, 3 or those which change punishments to the pre- 
judice of the defendant after the commission of the crime. 4 

1 Kansas 1857, Ohio 1851. 

2 Dartmouth College v. Woodward, 4 Wheat. 518 (1819). 

3 Coler v. Madison Co., I Illinois, 154 (1826). 

4 Johnson v. People, 173 Illinois, 131 (1898). The meaning and scope of the 
federal prohibition on the passage of ex post facto laws which is directed to the 
state legislature as well as to the National Congress was considered at length in 
the case of Calder v. Bull, 3 Dall., 386 (1798). 



BILL OF RIGHTS 



79 



The entire deprivation of a remedy on a contract, is a vio- 
lation of the protection hereby guaranteed, but the modifi- 
cation or substitution of a remedy is not, 1 nor is the chang- 
ing of the rules of evidence an impairment of a vested right. 2 
Limitation laws are not bad even if affecting existing rights, 
if a reasonable time is given for the assertion of the right be- 
fore the bar takes effect. 3 The legislature may enact retro- 
spective statutes to validate invalid contracts, or ratify acts 
which it might have authorized in the first place, if no vested 
rights will be infringed. 4 

Charters of private corporations are contracts under the 
Illinois constitution 5 as well as under the federal constitution, 
and are subject to only a reasonable exercise of the police 
power of the state, 6 that is, to the inherent inalienable right 
to make all reasonable regulations in the interests of public 
safety, welfare, health, and comfort. So even exemption 
from taxation by charter is a contract binding on the state, 7 
although the taxing power is a fundamental attribute of 
government. 

Sections 15 and 16* The necessity of having the military 
in subordination to the civil power, and the evils of any other 
relation between the two arms of government, had been 

1 Newkirk v. Chapron, 17 Illinois, 344 (1856). 

2 Roby v. Chicago, 64 Illinois, 447 (1872). 
3 ~Bradley v. Tightcap, 201 Illinois, 511 (1903). 

* Scammon v. Commercial Co., 6 Illinois Appeals, 551 (1880). 

5 Bruffet v. Great Western R. R. Co., 25 Illinois, 349 (1861). 

6 Ruggles v. People, 91 Illinois, 256 (1878). 

7 Illinois C. R. R. v. Goodwin, 94 Illinois, 262 (1880). 

8 " The military shall be in strict subordination to the civil power." 
" No soldier shall in time of peace be quartered in any house without the 
consent of the owner; nor in time of war, except in the manner prescribed by 
law." Constitution of Illinois, 1870, Art. ii, Sees. 15 and 16. 



80 THE CONSTITUTION OF ILLINOIS 

early felt in England, and a formal request for remedying 
the abuses of the military power was embodied in the Peti- 
tion of Right of 1628 to Charles I. in which it was de- 
manded that the soldiers and sailors quartered on the in- 
habitants in time of peace be removed, and that the 
proceedings by martial law instead of by civil law be sup- 
pressed. 1 Again in the Bill of Rights of 1689 Parliament 
expressly forbade the raising or keeping of a standing army 
within the kingdom in time of peace without its consent. 2 

In the period prior to the American Revolution, moreover, 
the colonists had suffered their own experience of the evils 
of having standing armies quartered upon them, and of inter- 
ference with the regular course of justice, and in the Declara- 
tion of Independence among the oppressions there described, 
were the keeping of standing armies in times of peace among 
the colonies without the consent of their legislatures, the 
quartering of large bodies of armed troops among them, and 
generally the rendering of the military independent of and 
superior to the civil power. 

The Virginia Bill of Rights, therefore, embodied a provi- 
sion forbidding standing armies in time of peace, and sub- 
ordinating the military power to the civil power, in all cases, 
as did also most of the other revolutionary constitutions. 
Notwithstanding the fact that these provisions were very 
common at the time when the first Illinois constitution was 
framed, no mention of them is contained in that document. 
But in the constitution of 1848, following the precedent of 
all but three of the twenty-eight constitutions then in force, 
the section subordinating the military to the civil power was 
inserted, and the present prohibition against quartering 
soldiers, found also in almost as many of the other constitu- 
tions of the time, was added. 

1 Stubbs, " Select Charters," p. 516. Petition of Right, ch. x. 

2 Ibid., p. 524. Bill of Rights, clause 6. 



BILL OF RIGHTS 8 1 

Section 7/. 1 Though the right of the people in a free 
government, peaceably to assemble and to petition the gov- 
ernment for redress of grievances, is one which results from 
the very nature and structure of its institutions, it was 
nevertheless subjected to repeated attacks by the crown 
in England. The right of petition, though now regarded 
as a simple, primitive, and natural right, was, even as late 
as the reign of James II., sought to be denied in the famous 
trial of the seven bishops for having attempted to exercise 
this right, and it was therein finally vindicated by their ac- 
quittal. 2 The English Bill of Rights of 1689, therefore, after 
reciting the illegal prosecution of these petitioners to the 
crown, declares that it is the right of the subject to petition 
the king, and that all commitments and prosecutions for such 
petitioning are illegal. 3 

This right was generally expressly protected in the early 
constitutions, though Story regards it as unnecessary to be 
expressly provided for, 4 and the earlier constitutions of 
Illinois guaranteed it in virtually the same terms as are now 
found in this section of the present Illinois constitution. 

Section i$. 5 The English Bill of Rights had declared that 
the election of members of parliament ought to be free, 6 and 
this principle ol free and equal elections was again expressly 
declared in the first American Bill of Rights about a century 

1 " The people have the right to assemble in a peaceable manner to consult for 
the common good, to make known their opinions to their representatives, and to 
apply for redress of grievances." Constitution of Illinois, 1870, Art. ii, Sec. 17. 

z Cooley, " Constitutional Limitations," p. 497. 

3 Stubbs, " Select Charters," p. 623. 

4 Story on the Constitution, sec. 1894. 

5 " All elections shall be free and equal." Constitution of Illinois, 1870, Art. 
ii, Sec. 1 8. 

6 Stubbs, " Select Charters," p. 525. 



82 THE CONSTITUTION OF ILLINOIS 

later. The early constitutions in this country pretty gener- 
ally followed the example of Virginia in this regard, and 
when in 1818 Illinois expressly guaranteed the freedom and 
equality of elections, she adopted the practice prevailing in 
more than half of the existing constitutions. 

The provision as found in the early Illinois constitution 
was retained verbatim both in the constitution of 1848 and 
in the present constitution of 1870. Just what practical 
effect would be given to this section by the Illinois courts 
does not appear, but its general purpose undoubtedly is to 
keep every election free of all influences and surroundings 
which might bear improperly upon it or might impel the 
electors to cast their votes otherwise than as their judgments 
would dictate. 1 



Section /p. 2 This general declaration of the protection 
which should be found in the law is practically an epitome 
of the theory of the common law, and was formulated in 
substance as early as the thirteenth century in the Great 
Charter of English Liberties. 3 Chapter 40 of Magna Charta 
of King John declares " we will sell to no man, we will deny 
no man, or defer right or justice," asserting a principle 
which has remained fundamental in the English law from 
that time to the present, and which had been guaranteed in 
over half the state constitutions in force when Illinois was 
admitted to the Union. 

The statement of this principle in the first Illinois consti- 

1 Cooley, " Constitutional Limitations," p. 922. 

2 " Every person ought to find a certain remedy in the laws for all injuries and 
wrongs which he may receive in his person, property, or reputation; he ought to 
obtain by law, right and justice freely and without being obliged to purchase it, 
completely and without denial, promptly and without delay." Constitution of 
Illinois, 1870, Art. ii, Sec. 19. 

3 Stubbs, " Select Charters," p. 301. 



BILL OF RIGHTS 83 

tution was adopted without substantial change in both of the 
later constitutions of Illinois, and stands in our present con- 
stitution little different from its first annunciation seven 
centuries ago. 

Under this provision of the constitution every man has the 
right to call upon the courts to protect him in his person, 
property, and reputation, and that, too, without reference to 
whether other persons are also suffering from the same 
cause. 1 

The right of an elector to have the person who has been 
lawfully elected established in his office is not a right the 
violation of which is an injury to his person, property, or 
reputation within this provision of the constitution, and can- 
not therefore be enforced through the courts in absence of a 
statute conferring such jurisdiction on them. 2 

But a statute requiring a plaintiff to show that he has paid 
all taxes, due and assessed, on a lot before he can question 
the validity of a tax title is repugnant to this provision of the 
constitution, in that it compels him to buy justice. 3 

Section 2O. 4 As a fitting conclusion to the foregoing enum- 
eration of the fundamental principles of government is added 
this declaration of the necessity of a frequent recurrence to 
these principles for preserving the blessings of liberty. Similar 
declarations were found in six of the early state constitu- 
tions and in the first constitution of Illinois from which the 
provision was continued without change in the subsequent 
constitutions of the state. 

1 Wylie v. Elwood, 34 Illinois Appeals 244 (1889). 

2 Douglas v. Hutchinson, 183 Illinois, 327 (1899). 

3 Reed v. Tyler, 56 Illinois, 288 (1870). 

4 " A frequent recurrence to the fundamental principles of civil government is 
absolutely necessary to preserve the blessings of liberty." Constitution of Illinois 
1870, Art. ii, Sec. 20. 



84 THE CONSTITUTION OF ILLINOIS 

Such, then, are the principles, in their origin, develop- 
ment, and application, which now stand as part of the funda- 
mental law of the commonwealth of Illinois ; the resultants of a 
large number of factors of varying influence and importance. 
The manifest qualities of the common law, its no less ap- 
parent defects, the doctrines of political theorists, the neces- 
sities of political exigencies, ancient constitutional principles 
and modern political developments, all played some part 
in formulating the body of declarations contained in the 
present bill of rights ; an enumeration of individual rights, 
on the one hand, comprehensive enough to provide an ade- 
quate guarantee of personal liberty, without, on the other 
hand, entering into undue philosophical speculation or un- 
wise legislative detail. 



ARTICLE III. 

THE DISTRIBUTION OF POWERS. 1 

The doctrine of a separation of governmental powers so 
emphatically laid down in this article of the constitution of 
Illinois was one that had come to be an integral part of 
American political theory in the earliest period of our con- 
stitution making. 2 The doctrine in a somewhat different 
form may be found as far back as the political writings of 
the Greeks and Romans, though never substantially exempli- 
fied in those governments. For many centuries thereafter, 
no clear distinction was observed between the powers we 
now classify as legislative, executive and judicial, and the 
middle of the seventeenth century in England saw the first 
recognition of this doctrine as a political theory. 

John Locke in his political writings of that time strongly 
advocated the separation of legislative and executive pow- 
ers, including as a third class, the federative powers which 
consisted in substance of the diplomatic powers. Like some 
modern publicists he did not regard the judicial power as 
a separate independent power. 3 In France, in the next 

1 " The powers of the government of this state are divided into three distinct 
departments the Legislative, Executive and Judicial; and no person or collec- 
tion of persons being one of these departments shall exercise any power properly 
belonging to either of the others, except as hireinafter expressly directed or per- 
mitted." Constitution of Illinois, 1870, Art. Hi. 

2 For a more extended historical consideration of this doctrine see Bondy 
" Separation of Governmental Powers," Columbia University Studies, vol. v, pp. 
144 ff., and also a comprehensive collection of references in Garner, " Introduc- 
tion to Political Science," ch. xiii. 

8 Cf. Goodnow, " Politics and Administration," ch. i. 

85 



86 THE CONSTITUTION OF ILLINOIS 

century, Locke's views were developed and elaborated by 
Montesquieu, who in his " Esprit des Lois!' established the 
separation of governmental powers as a fundamental prin- 
ciple of political .science, making a third independent class 
of powers of the judicial functions. Blackstone expounded 
similar views in England, but neither of these writers main- 
tained that any absolute and complete separation of these 
powers into three distinct departments of government was 
either desirable or possible. 

In America the framers of our early constitutions accepted 
the doctrine of Montesquieu and recognized a certain separa- 
tion of the powers of government as essential to liberty. 
Prior even to the adoption of the federal constitutions six of 
the twelve states with written constitutions at that time had 
thought this doctrine of sufficient importance to insert a 
special article or clause, distributing the powers of govern- 
ment, in more or less unqualified terms among the three de- 
partments. 1 When in 1818 the first constitution of Illinois 
embodied this principle in a separate article, eleven of the 
eighteen state constitutions then in force had already em- 
phasized its importance in a similar manner. 2 

The article on the distribution of powers as embodied in 
the constitution of 1 8 1 8 was adopted without material changes 
in both of the subsequent constitutions of Illinois. Hence 
in examining the cases involving a discussion of this article, 
one may regard the decisions under the earlier constitutions 
as equally applicable to the determination of the legal effect 
of the article in the present constitution ; for, in the language 

1 Georgia 1777, Maryland 1776, Massachusetts 1780, New Hampshire 1776* 
North Carolina 1776, Virginia 1776. Thorpe," American Charters, Constitutions 
and Organic Laws." 

2 Georgia 1798, Indiana 1816, Kentucky 1799, Louisiana 1812, Maryland 1776, 
Massachusetts 1780, Mississippi 1817, New Hampshire 1792, North Carolina 
1776, Vermont 1786, Virginia 1776. Thorpe, supra. 



THE DISTRIBUTION OF POWERS g; 

of the Illinois Supreme Court: " It must be presumed that 
when the present constitution was adopted it was with full 
knowledge of the interpretation that had been placed by the 
court upon the language incorporated therein from the prior 
constitution." J 

The earliest judicial consideration in Illinois of the mean- 
ing of the distributing article in the constitution seems to 
have been in the early case of Field vs. People? in 1839, in 
which the court declared that this article, although express- 
ing a fundamental principle of vital importance, was to be 
understood in a limited and qualified sense only, and not to 
mean that there shall be absolutely no connection or depen- 
dence between the departments, " for in every state there is 
a blending and admixture of different powers, so far as to 
give each department a constitutional control over the others, 
considered by the wisest statesmen as essential in a free 
government as is separation." The court goes further than 
this general qualification and, adopting the words of Madi- 
son, 3 declares of the article : " its true meaning in theory 
and practice is that the whole power of two or more of these 
departments shall not be lodged in the same hands, whether 
of one or many." This interpretation of the article, so broad 
as to be practically destructive of all significance it might 
have had in the minds of the framers of the constitution, was 
never followed ; for very soon after the decision of the case 
in which this peculiar doctrine was announced the courts 
undertook in a number of instances to declare acts of one 
department unconstitutional as being in violation of the dis- 
tributing article, though assuming to exercise some only of 
the powers thought to belong properly to another. 

But, though this early extreme view was never followed in 

1 Sterling Gas Co. v. Higby, 134 Illinois, 557 (1890). 

2 3 Illinois, 79 (1839). 3 Federalist, no. xlvii. 



88 THE CONSTITUTION OF ILLINOIS 

later cases, yet from the first the Illinois courts have de- 
clared that the language of the article in question is not to 
be taken exactly as it stands, but must rather be regarded 
as implying a qualification, similar, perhaps to the one ex- 
pressly inserted in the constitution of New Hampshire in 
which the powers of government are to be kept " as separate 
from and independent of each other as the nature of a free 
government will admit, or as is consistent with that chain of 
connection that binds the whole fabric of the constitution in 
one indissoluble bond of union and amity." 

Before examining the cases in which one of the depart- 
ments of government was claimed to have attempted an ex- 
ercise of powers properly belonging to some other, we shall 
refer briefly to the question of the independence of each de- 
partment from the control of either of the others, which 
control in so far as it is not expressly sanctioned by the con- 
stitution would seem to involve a departure from the article 
on the distribution of powers. In the first place, under our 
American theory of the function of the courts in passing upon 
the constitutionality of the acts of the other departments, a 
theory firmly established in most of our state governments as 
well as in the federal government even before the first con- 
stitution of Illinois was framed, 1 the judiciary exercises, of 
course, a most effective form of cpntrol over the legislative 
and executive departments. In Illinois this power of the 
courts seems not to have been questioned, as it was in Ohio 
and Kentucky even after the date of the adoption of the first 
Illinois Constitution. 2 It must be accepted, therefore, that 
this form of control was not regarded as being within the 
spirit of the prohibition expressed in the distributing article, 
wherefore a discussion of the manner in which, or of the ex- 

1 Bondy, " Separation of Governmental Powers," Columbia University Studies, 
vol. v, p. 184. 

* Ibid., pp. 187, 188. 



THE DISTRIBUTION OF POWERS 89 

tent to which, this power is exercised does not properly fall 
within the purview of this examination. 

But judicial control may also be exercised directly through 
the process of the courts, particularly by means of the special 
writs of mandamus, injunction, quo warranto, etc., as applied 
to officers of the government, and here the courts have given 
some effect to the doctrine of the independence of the several 
departments. The case of People vs. Bissell 1 established 
the rule that a mandamus will not issue to compel the 
performance of a duty by the chief executive under any 
circumstances. In this case it was sought to mandamus the 
governor to issue certain bonds which it was claimed he was 
legally bound to issue* The court refused the petition for a 
mandamus without considering the other questions involved 
in the case, on the ground that the executive department 
was not subject to such control by the judiciary. " Neither 
of the three great departments," says the court, " into which 
our government is by the constitution divided is subordinate 
to or may exercise any control over another except as pro- 
vided in the constitution. We have no power to compel 
either of the other departments of the government to per- 
form any duty which the constitution or the law may impose 
upon them, no matter how palpable such duty may be, any 
more_ than either of those departments may compel us to 
perform our duties." 

The rule thus laid down in Illinois, though not the one 
followed in some other jurisdictions, 2 is unquestionably the 
most expedient in view of the practical impossibility of en- 
forcing obedience to such a writ if issued ; and the prin- 
ciple of the Bissell case was reaffirmed in two later Illinois 

1 19 Illinois, 229 (1857). 

2 State v. Governor, 5 Ohio St., 528 (1856); Cotton v. Governor, 7 Jones (N. 
C.), 545 (1860); Magruder v. Governor, 25 Md., 173 (1866), et al. 



90 THE CONSTITUTION OF ILLINOIS 

decisions. In People vs. Yates? the court refused an appli- 
cation for mandamus to compel the Governor to deposit 
with the Secretary of State a bill passed by the General 
Assembly and placed in his hands for consideration and 
which had not been returned as required by the constitution ; 
and in the later case of People vs. Cullorn? a mandamus 
was refused which sought to compel the Governor to call an 
election for county judge as required by the constitution. 
But this independence of the executive from direct control 
by the courts does not extend to the protection of private 
rights attempted to be conferred by him contrary to law. 
So where the Governor is authorized to sell state realty to 
the highest responsible bidder, if he should attempt to sell 
it to one of several admittedly responsible bidders, other 
than the highest, the courts would review his action in pas- 
sing on the rights of individual adverse claimants to the 
land. 3 Nor is it any interference with the powers of the 
executive to enjoin the making of vouchers by state house 
commissioners for illegal expenditures even though such 
vouchers required the approval of the Governor before any 
money could be paid out under them. 4 

The independence of the legislature from judicial interfer- 
ence has been recognized in a number of cases in which the 
courts have refused to review the discretion vested in the 
legislature in the performance of many of its functions. 
Even when the constitution has declared definitely how the 
legislature shall act in certain matters, as for instance in the 
matter of senatorial apportionment, the courts will not go 
back of a bona fide attempt to comply with the constitutional 

*40 Illinois, 126 (1863). 

2 100 Illinois, 472 (1881). 

3 Webster i>. French, u Illinois, 254 (1849). 

4 Littler v. Jayne, 124 Illinois, 123 (] 



THE DISTRIBUTION OF POWERS, gi 

requirement, even though a substantial variation therefrom 
is offered to be shown. 1 In the case of Whiteside County 
vs. Burchell? it was claimed that the legislature was bound 
by a trust charged by Congress on lands given to the state, 
to drain and reclaim them, and that it was proper for the 
court to enforce that trust. But the court said that even if 
the lands could have been regarded as charged with such a 
trust, it was a trust of municipal and not judicial concern, 
over which the power of the state is plenary and exclusive. 

Certain other functions, designated by the courts as politi- 
cal, have been held to be without the scope of judicial in- 
terference or control in the absence of statutory authority. 
So the court refused to relieve against fraud, accident or 
mistake in elections by mandamus or injunction, even though 
no other method of contesting the election was provided. 3 
Nor will a court enjoin the holding of an election, for that 
too is a political and not a judicial function. 4 In Dickey vs. 
Reed, 3 the court designated as such political questions those 
controversies where the decision of the court " must deter- 
mine which of two persons shall hold an office or which of 
two forms of local government shall control the people of a 
municipality," and felt that to allow the courts to decide 
such questions " would largely give control of the political 
power of the state to the courts, a department not designed 
either directly or indirectly to exercise or control that 
power." 

The independence of the judiciary as regards interference 
by the legislative branch of the government was asserted in 

1 People v. Thompson, 155 Illinois, 451 (1895); People v. Rose, 203 Illinois, 
46 (1903). 

* 3 1 Illinois, 68 (1863). 

3 Moore v. Hoisington, 31 Illinois 243 (1863). 

4 People v. Galesburg, 48 Illinois, 486 (1868). 

5 78 Illinois, 261 (1875). 



92 THE CONSTITUTION OF ILLINOIS 

the case of 0' Neil vs. People, 1 in a dictum to the effect that 
the power of the courts to punish contempt summarily is 
not only incident to courts of record but is not in fact sus- 
ceptible of abridgment by legislative enactment. A recent 
assertion of freedom of the judiciary from executive control 
occurred in 1909 when the Supreme Court of Illinois, after 
invalidating three primary laws passed by the General 
Assembly, refused to comply with the Governor's request 
for a draft of a primary law which would not be open to the 
numerous constitutional defects that had caused the in- 
validating of the former laws. 

Coming now to the consideration of the cases involving 
what was claimed to be the improper exercise by one de- 
partment of powers belonging to another, we shall consider 
in the first place acts of the legislature which have been 
judicially discussed from this point of view. The general 
attitude of the court towards this question, as expressed in 
the case of Rhinehart vs. Schuyler? was still rather more 
liberal than the actual subsequent decisions seemed to adopt. 
The court in that case quotes with approval a declaration 
that " the position that a legislature cannot constitutionally 
perform a judicial act is supported by no authority nor has 
it any reason in public policy or convenience," though there 
had already been decided some cases in which the power of 
the legislature to pass acts involving judicial determinations 
had been denied, and a number of later cases were deter- 
mined in the same way. The court continues in the case 
above, " The constitutional division of powers is only a de- 
claration of the general system or theory of government and 
was never intended to fix exact and impassable limits to each 
department," which is undoubtedly true, as is also the 

1 113 Illinois, Appeals, 195 (1903). 

2 7 Illinois, 473 (1845). 



THE DISTRIBUTION OF POWERS 93 

further declaration that " there are things necessary to 
be done in the administration of the government of a char- 
acter so mixed and blended, partaking of the elements of all 
three divisions of power that we could not know to which to 
assign it." Nevertheless, we find the court unhesitatingly 
declaring a number of legislative acts invalid on the very 
ground that the legislature has encroached upon the domain 
reserved by the constitutional division of powers to the 
judiciary alone. 

So the following acts were regarded as involving an un- 
constitutional exercise of judicial power by the legislative 
department : 

(a) The ascertainment of indebtedness between two par- 
ties, and the direction of the application of property of the 
one to the payment of the other was held in the case of 
Lane vs. Dormant to be a judicial act that could not be per- 
formed by the legislature, and such legislative determination 
of the existence of debts has been held invalid in several 
subsequent cases. 2 

This is, of course, a very clear case of a power that prop- 
erly belongs to the courts alone if the principle of the sepa- 
ration of powers is to be given any practical application. Of 
the same nature is the determination whether a widow is 
entitled to dower in a certain piece of land, and so a legis- 
lative act attempting to make such a determination was held 
invalid in the case of Edwards vs. Pope? So also an act de- 
claring the title to certain land, deeded by a grantor on con- 
dition, to have reverted by a breach of condition was held 
to be an unconstitutional exercise of judicial power. 4 On 

1 4 Illinois, 238 (1841). 

2 Davenport v. Young, 16 Illinois, 548 (1855); Rozier v. Fagan, 46 Illinois, 
404 (1868). 

3 4 Illinois, 465 (1842). 

4 Board of Education v. Bakewell, 122 Illinois, 339 (1887). 



94 THE CONSTITUTION OF ILLINOIS 

the same ground it was held in the case of Bruffet vs. Great 
Western Ry.? that a legislative act declaring a corporate 
charter to have been forfeited was an invalid attempt to ex- 
ercise judicial powers. 

(b) An attempt by the legislature to validate a tax levy 
which has been declared invalid by the Supreme Court was 
declared unconstitutional on the ground that the adjudication 
by the court was final and not subject to legislative revision. 2 

(c) A legislative declaration of what facts shall be taken 
as conclusive evidence of others would be an invasion of the 
powers of the judiciary according to the view of the court 
in People vs. Rose? though it is competent for the legislature 
to make reasonable rules as to what facts shall constitute 
prima facie evidence. 4 

(d ) The case of In re Day 5 decided that the determina- 
tion of qualifications for admission to the Bar was a judicial 
function not subject to legislative enactment; except nega- 
tively for the protection of the state by excluding those per- 
sons through whom injurious consequences are likely to re- 
sult to the inhabitants of the state. So it was held in that 
case that a statute providing that holders of a two-year law- 
school diploma should be admitted to the Bar without ex- 
amination was unconstitutional. This case is somewhat 
peculiar, in that it undertakes to classify as strictly judicial 
a power which is neither expressly declared to be such by 
the constitution, nor which as a matter of historical practice 
had been previously so regarded. Furthermore, the pre- 
scribing of qualifications for the practice of all other profes- 
sions is admittedly a proper legislative undertaking, and if 

1 25 Illinois, 310 (1861). 

1 Chicago & Eastern Illinois R. R. v. People, 219 Illinois, 408 (1906). 

3 207 Illinois, 352 (1904). 

*Burbank v. People, 90 Illinois, 554 (1878). 

6 i8i Illinois, 73 (1899). 



THE DISTRIBUTION OF POWERS 95 

this departure from the ordinary rule is to be justified at all, 
it would seem that it could be only upon the ground of the 
close connection between the judiciary and the attorneys of 
a state, which latter are, indeed, frequently referred to as 
officers of the court. The opinion in the case of In Re Day 
does not, however, undertake to do more than merely lay 
down this rather remarkable holding. 

That historical practice and express constitutional pro- 
visions are not the only basis for permitting the exercise of 
a power by one or the other departments of government, 
appears also from the opinion in the case of Dodge vs. Cole? 
in which the power of a court of equity to order the sale of 
the realty of an insane person was upheld as a proper judicial 
power, though not sanctioned in either of the above two 
ways, there being, in the opinion of the court, no violation 
of the principle of separation of powers merely because the 
court assumed a function which in this particular aspect had 
not been previously exercised. 

Among legislative acts objected to as an improper assump- 
tion of judicial powers but sustained by the courts as being 
within legislative competency are the following: 

An act authorizing a guardian to sell the realty of his 
ward under the direction of a court of probate is not objec- 
tionable as being a judicial determination, 2 for here the legis- 
lature does not attempt to adjudicate adverse claims but 
merely acts in the interest of a ward by permitting his 
guardian to act subject to approval by the court of probate. 
An act authorizing the levying of a special tax by bridge 
commissioners for defraying the debts incurred in the erec- 
tion and repair of a bridge, was held not to be objectionable 
as a legislative determination of indebtedness ; for, while as- 

1 97 Illinois, 338 (1881). 

1 Mason v. Wait, 5 Illinois, 127 (1842). 



9 6 



THE CONSTITUTION OF ILLINOIS 



suming there may be debts, the act did not undertake the 
determine their nature or amount nor to whom or from 
whom due. 1 

Classification of lands for taxation and fixing the amount 
of taxes to be assessed on each class was held not to be an 
unconstitutional exercise of judicial powers, 2 the legislature 
not having designated into which class particular pieces of 
property should be put. The powers of the legislature 
over the public funds of a municipal corporation are not 
limited by the article on the distribution of powers as is its 
control over private funds. So the legislature may order a 
county to pay over to another county, formed out of the 
first, a part of a fund granted originally by the legislature to 
the former. 3 So also the legislature may stipulate how the 
surplus of taxes collected by a county and city shall be dis- 
tributed between them, for the power conferred on a county 
to raise revenue is a political power, and its application when 
collected must necessarily be within the control of the legis- 
lature for political purposes. 4 

Retroactive acts affecting existing agreements are not 
necessarily invalid assumptions of judicial power. So an 
act laying down a general rule to govern all contracts made 
during a certain prior period, merely taking away an exist- 
ing penalty for usury and directing that interest shall be 
allowed to the extent to which it might have been lawfully 
reserved, is not an improper assumption of judicial power, 5 
nor is an act validating past loans by foreign corporations 
objectionable, 6 nor an act validating contracts made with 

1 Shaw v. Dennis, 10 Illinois, 405 (1849). 

7 Rhinebart v. Schuyler, 7 Illinois, 473 (1845). 

8 County of Richland v. County of Lawrence, 12 Illinois, I (1850). 

4 People v. Power, 25 Illinois, 169 (1861). 

5 Parmelee v. Lawrence, 48 Illinois, 331 (1868;. 

6 U. S. Mortgage Co. v. Gross, 93 Illinois, 483 (1879). 



THE DISTRIBUTION OF POWERS gj 

corporations, which contracts were unenforceable because 
acknowledged before officers who were also stockholders in 
the corporation. 1 Though it was insisted that this last act 
was not a law but a legislative direction to the courts to 
decide and adjudge in a particular manner, the court held 
it was not the exercise of judicial power, for it did not pur- 
port to settle suits or controversies, but merely gave effect to 
acknowledgments in a manner under legislative control. 
The ground for all three of these cases is to be found in the 
language of Judge Cooley, quoted in the case of U. S. Mort- 
gage Co. vs. Gross 2 "When such (retroactive) acts go no 
farther than to bind a party by a contract he has attempted 
to enter into, but which was invalid by reason of some per- 
sonal inability on his part to make it or through neglect of 
some legal formality or in consequence of some ingredient 
in the contract forbidden by law, the question they suggest 
is one of policy and not of constitutional power." The gen- 
eral rule as stated in the same case is, that in absence of 
constitutional prohibition the legislature has the power, when 
it interferes with no vested right, to enact retroactive statutes 
to validate invalid contracts or to ratify or confirm any act 
it might lawfully have authorized in the first place. 

An act restricting the defenses admissible to an applica- 
tion for judgment of sale upon assessments or matured in- 
stalments, by excluding those which might have been inter- 
posed in either the original proceeding for making such 
assessments or in the application for confirmation thereof, 
was held not to be a curtailment of the powers of inquiry of 
the court by the legislature. 3 If proper judicial inquiry is 
provided for, the legislature may adopt rules of this nature 

1 Steger v. Traveling Men's Association, 208 Illinois, 236 (1904). 

'93 Illinois, 483 (1879). 

5 Downey v % People, 205 Illinois, 230 (1903). 



g8 THE CONSTITUTION OF ILLINOIS 

intended to bring litigation concerning the validity of official 
acts to a speedy close. 

It appears, therefore, from the foregoing cases that the 
Illinois courts have regarded the article on the distribution 
of powers as prohibiting; the legislative determination 
among adverse claimants of property rights, whether choses 
in action or in possession, individual rights or corporate 
charters ; validating a tax levy already declared invalid by 
the Supreme Court ; making certain facts conclusive evidence 
of others ; and determining who shall be admitted to the 
Bar. On the other hand, remedial acts empowering indi- 
viduals to do what they desire with their own property but 
had not power to do; acts authorizing a sale by a guardian 
of his ward's realty, under the direction and sanction of a 
court of probate; disposition of public funds of municipal 
corporations for governmental purposes; classification of 
property and assessment of taxes by classes ; retroactive 
acts carrying out the intention of the parties to invalid con- 
tracts; the reasonable designation of what shall be prima 
facie evidence, and the reasonable restriction of defenses in 
cases where proper hearing is otherwise provided ; are not 
regarded as judicial functions denied the legislature by the 
requirement of separation of powers. 

It should be noted that some of the cases considered above 
are now within the express constitutional prohibition against 
special legislation, x and would therefore no longer depend 
upon an application of the doctrine of separation of powers. 

As regards the exercise by the legi*lature of powers that 
might be considered as belonging properly to the executive 
branch of the government, the early case of Field vs. People, 
sitpra, held that the power to remove the Secretary of State 
was not, under the constitution of 1818, to be implied as be- 

1 Constitution of Illinois, 1870, Art. iv, Sec. 22. 



THE DISTRIBUTION OF POWERS 



99 



longing to the executive, but rested in the legislature. The 
creation of offices, the delegation and regulation of powers and 
duties of officers, and prescribing the period for which they 
shall be exercised are legislative functions, according to the 
view of the court, and rest with the legislature in absence of 
constitutional restraint upon their exercise. The executive 
pardoning power was held in the case of Meul vs. People'' 
not to be infringed by an act providing that one-half of the 
fines imposed and collected under the Fish and Game Act 
should be paid to the informer, as the power given the Gov- 
ernor to grant reprieves, commutations and pardon does not 
confer or include the power to remit the interest of others in 
the fines and penalties which have become fixed and vested. 

Finally, the question of what are and what are not legis- 
lative powers has arisen also, and much more frequently, in- 
deed, in cases involving the alleged delegation of such pow- 
ers to subordinate bodies not belonging wholly to either one 
of the two other departments of government. But as these 
cases raise no question of the separation of powers as be- 
tween the three departments, their consideration falls prop- 
erly under an examination of the judicial decisions bearing 
on Art. IV., I of the present constitution by which the 
legislative power is vested in the General Assembly. 

The validity of powers exercised by the executive branch 
of the government seems never to have been denied in Illi- 
nois on the ground of their involving a violation of the 
article on the distribution of powers, the early case of Field 
vs. People, supra, having been decided rather on the ground 
that as the Governor had not been directly authorized by 
the constitution to remove the Secretary of State, such 
power would not be implied, than on the ground that the 
power in its nature could not be exercised by the executive 

1 198 Illinois, 258 (1902). 



I0 o THE CONSTITUTION OF ILLINOIS 

branch of the government. 1 An Illinois case is, indeed, some- 
times cited as laying down the rule that the mayor of a city 
being an executive officer of the state, could not, under the 
constitutional separation of powers be invested with the 
judicial powers of a justice of the peace. But an examina- 
tion of the case so cited, 2 shows that it does not stand for 
the proposition that the distributing article applies to mayors 
of cities which would mark an important and exceptional 
departure from the generally prevalent view that the consti- 
tutional requirement of separation of powers refers only to 
the departments of the central government but that the case 
really turns on another provision of the constitution of 1848, 
relative to the terms of justices of the peace, which made it 
impossible for one-year mayors to act in that capacity. This 
decision was followed a few years later in the case of Beese- 
man vs. City of Peoria? in which the facts were similar. As 
these cases turn, therefore, on a special constitutional pro- 
vision they cannot be taken to show an extension of the 
doctrine of separation of powers to local governmental 
agencies, which view would be neither consistent with the 
purpose or intent of the constitutional prohibition nor recon- 
cilable with the actual established practice in this state, or 
in any other, with reference to the powers vested in local 
governing bodies. 4 

The extent of the constitutional restriction upon powers 
exercisable by the judiciary has been considered in a num- 

1 People v. Butler Str. Foundry Co., 201 Illinois, 236 (1903), held that requir- 
ing corporations to file an anti-trust affidavit before the Secretary of State, under 
penalty for failure to do so, did not invest the latter with judicial powers in viola- 
tion of Article III. 

2 State v. Maynard, 14 Illinois, 419 (1853). 

3 1 6 Illinois, 484 (1855). 

4 Bondy, supra, ch. xxii. Under the commission form of city government now 
increasingly introduced in this country especially in the West, all legislative and 
executive powers are united in the same authorities. 



THE DISTRIBUTION OF POWERS IO i 

ber of cases involving, for the most part, the validity of leg- 
islative imposition of duties upon the courts. Powers which 
have been considered as legislative in their nature to the 
extent of not being exercisable by the courts are the fol- 
lowing : 

(a) The changing of the boundaries of municipal cor- 
porations was held to be a legislative function not exercis- 
able by the courts, in City of Galesburg vs. Hawkinson? 
because the boundaries if fixed by the courts would still be 
alterable at the will of the legislature, and the proceeding 
therefore lacked the essence of a judicial determination, viz., 
that it should, so long as unreversed and not vacated, be 
conclusive as to the matters in controversy. But though the 
creation of municipal corporations and the ultimate fixing of 
their boundaries could not be entrusted to the courts, a 
board consisting of a county judge and two circuit judges 
may be created to designate the territory to be embraced in 
a proposed municipal corporation prior to submitting the 
question of incorporation to a vote. a 

(#) The power to compel a public service corporation to 
charge certain specified rates for a commodity rests with the 
legislature and not with the courts. In the case of People's 
Gas Light and Coke Co. vs. Hale* the court refused to 
order the defendant company to charge the rates claimed by 
the plaintiff to be the maximum reasonable rates, on the 
ground that, while inquiring whether rates that have been 
charged and collected are reasonable or not is a judicial act, 
prescribing rates which shall be collected in the future is a 
legislative act. 

(c) It is not competent for a court to declare that a pri- 
vate corporation has, by virtue of its great extent, become a 

75 Illinois, 152 (1874). 

2 People v. Nelson, 133 Illinois, 565 (1890). 

8 94 Illinois Appeals 406 (1900). 



I0 2 THE CONSTITUTION OF ILLINOIS 

public service corporation. As was said in the case of the 
American Live Stock Commission Co. vs. Chicago Live Stock 
Exchange? though there may exist facts sufficient to war- 
rant the legislature in declaring a private corporation to 
have become affected with a public use and to require legal 
control and supervision, that power does not reside in the 
courts. 

The constitutionality of vesting the power of appointing 
administrative officers in the courts, though questioned in a 
number of cases in Illinois, has always been upheld as not 
conflicting with the requirements of separation of powers. So 
an act giving to the circuit court the power to appoint park 
commissioners was upheld in two cases, 2 in one of which, 
People vs. Morgan 3 it was said that the power to appoint is 
by no means an executive function unless made so by the 
constitution or by statute, and the legislature may designate 
the courts as the appointing body. Similar acts authorizing 
county courts to appoint drainage commissioners were up- 
held in various Illinois cases on like grounds, 4 and the same 
was held with reference to an act vesting the appointment 
of a board of election commissioners in the county court, 5 
the court resting its decision on the ground that the power 
to appoint officers of this kind was not characterized by the 
constitution as either a legislative, judicial or executive 
power, nor was anything therein expressed which either di- 
rectly or impliedly prohibited the legislature from author- 

1 143 Illinois, 210 (1892). 

2 People v. Williams, 51 Illinois, 63 (1869); People v. Morgan, 90 Illinois, 
558(1878). 

3 90 Illinois, 558 (1878). 

4 Moore v. People, ic6 Illinois, 376 (1883); Blake v. People, 109 Illinois, 504 
(1884); Kilgour v. Drainage Commissioners, in Illinois, 342 (1884); Huston 
v. Clark, 112 Illinois, 344 (1884). 

6 People v. Hoffman, 116 Illinois, 587 (1886). 



THE DISTRIBUTION OF POWERS 



103 



izing the county court to appoint such commissioners. In 
the later case of Sherman vs. People* this doctrine was re- 
affirmed, the court adding that this jurisdiction could be 
conferred also under the general jurisdiction clause granting 
to county courts " such other jurisdiction as may be con- 
ferred by law." 2 The court in that case sustained an act 
making the election judges and clerks officers of the court 
and punishable summarily by contempt proceedings for mis- 
behavior in office. In the same light as these powers of ap- 
pointment are regarded the powers conferred on judges to 
take acknowledgments and to solemnize marriages. 3 

Finally, in the recent case of Aurora vs. Sch'Jeberlein,* the 
court held that no appeal could lie from an order of a board 
of fire commissioners, removing an officer under their con- 
trol, to the circuit court, for the board acts executively not 
judicially in dismissing an officer and hence its decisions do 
not present a proper case for appeal to the circuit court. 
The court further says that the legislature could not confer 
such judicial power on this board as to make its decisions 
subject to appeal, as a judicial proceeding, to the court, 
though this dictum is contrary to the general rule of law 
elsewhere and its soundness may be doubted. 

As in the case of legislative powers, so with judicial powers 
also, the consideration of their nature has arisen most fre- 
quently in cases involving the exercise of judicial functions 
by non-judicial bodies not strictly members of the two other 
departments of the central government. And here again, 
therefore, the discussion of the constitutionality of such exer- 
cise falls properly under the examination of the provision 
vesting the judicial power in the named organs of the judi- 

1 210 Illinois, 552 (1904). 

2 Constitution of Illinois, 1870, Art. vi, Sec. 18. 
8 People v. Nelson, 133 Illinois, 565 (1890). 

4 230 Illinois, 496 (1907). 



104 



THE CONSTITUTION OF ILLINOIS 



ciary department, and has no necessary bearing on the mean- 
ing of the distributing article, for powers that are consid- 
ered judicial for one purpose are not necessarily so considered 
for all purposes. 

Summing up the cases on the powers conceded or denied 
the judiciary under the distributing article, it appears that 
courts may not (a) determine boundaries of municipal 
corporations, (&) declare affirmatively what rates may be 
charged in the future by public service corporations, (c) de- 
clare private corporations to have because of their growth 
become affected with a public interest, or (</) hear appeals 
from determinations of administrative boards. On the other 
hand, it is no violation of the article on the separation of 
powers for courts to make preliminary designations, when 
acting as a board, of the territory of proposed municipal 
corporations, or to appoint certain non-judicial officers such 
as park, drainage or election commissioners. 

In conclusion it may be said that although the early view 
as announced in the case of Field vs. People -, supra, by 
which the article on the distribution of powers would have 
been practically shorn of all effect, was not adhered to in 
later decisions, yet to-day it is true that article iii of the 
constitution has a significance the more remarkably small 
because of the emphatic language employed therein. Not 
only will the courts not insist on any strict separation of 
powers, leaning rather towards a very liberal construction of 
the article, but even of the above cases denying the validity 
of the exercise of certain powers by one or the other of the 
departments, the greater part could rest as well on other 
constitutional grounds. 1 Indeed, as regards the importance 
of a special article like article iii in the Illinois constitution, 

1 So the legislative determination. of private rights, even when not covered by 
the restriction on special legislation, would undoubtedly be obnoxious to the 
guarantee of due process as now construed by the courts. 



THE DISTRIBUTION OF POWERS IO 5 

it seems that all of these cases would probably have been de- 
cided in the same way even in the absence of any such 
article, under the general idea of the separation of powers as 
embodied in the three clauses vesting the three powers of 
government in the respective departments thereof, for the 
federal decisions on the distribution of powers have gone as 
far as those in Illinois, and that too, although there is no 
express pro'vision in the federal constitution corresponding 
to art. iii of the constitution of Illinois. 



VITA 



HERMAN GERLACH JAMES, born January 2, 1887, Phila- 
delphia, Pa. Attended Northwestern University, 1903- 
1904; University of Illinois, 1904-1906, graduating with 
the degree of A.B., June, 1906; elected to Phi Beta Kappa; 
Harvard University Law School, 1906-1907; University of 
Chicago Law School, 1907-1909, graduating with the de- 
gree J.D., cum laiide, June, 1909; admitted to the Illinois 
Bar, June, 1909; University of Illinois, 1909-1910, gradu- 
ating with the degree of M.A., June, 1910; Columbia Uni- 
versity Fellow in Administrative Law, 19101911. 

107 



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icP 9 1963 



